What Deference Does It Make? - The American Spectator | USA News and Politics
What Deference Does It Make?
The U.S. Supreme Court. Image: Fred Schilling, Collection of the Supreme Court of the United States

Know your role. This prescription pervades the basketball world. Adhering to it requires an honest assessment of one’s own abilities and their in relationship to one’s teammates’. Do you contribute best as a scorer, facilitator, or defender? Does your skill set work better for post-play or on the perimeter? By knowing and acting within your role, you improve the team, increasing your chances of winning.

The adage also works for our national political institutions. The Constitution establishes them according to the theory of separation of powers. Congress, the presidency, and the courts each possess a role in this system — lawmaking, law enforcing, and law interpreting. Operating according to one’s part, then, results in government better at both protecting liberty and not threatening it.

Knowing your role helps to describe the decisions and debates dominating the Supreme Court’s recently completed 2018 term. As with any docket, certain cases involved determining individuals’ constitutional rights. Decisions regarding free speech, the Establishment Clause, and the Eighth Amendment all fell within this category. But, in the big cases, the most common theme concerned determining where and how distinct governmental institutions fit within our constitutional system. These determinations required the Court to consider both the part each institution should play and its implications for our principles.

The Court’s Role: Gerrymandering

We begin with the courts. The judiciary’s constitutional role is to interpret the law, applying it to particular situations in order to resolve disputes. One example of the Court considering its own rule came in Rucho v. Common Cause. This case pertained to partisan gerrymandering in the states. We all have seen the comically drawn district maps, each created with one main goal: to maximize a party’s share of seats in the House of Representatives. Both Maryland and North Carolina took this approach in blatant fashion when drawing their states’ most recent congressional districts.

In such instances, should federal judges intervene? In other words, is this their role? The majority said no. The Court rested this conclusion in part on limitations attaching to its role as law interpreters. Chief Justice John Roberts argued that, to do so well, judges needed to act according to “limited and precise standards that are clear, manageable, and politically neutral.” Here, the majority recognized that the judiciary operates best when using standards both clear in definition and categorical in application. This point was true because laws themselves, at least when well made, were clear, manageable, and thus capable of non-partisan application. Without such clarity and category, judicial decisions tended to take on (and badly so) the legislative branch’s role — creating law.

Here, reviewing partisan gerrymanders required courts to make two determinations squarely outside of the judicial power and, consequently, outside of judges’ competence. First, arguments against partisan gerrymandering reduced to its inherent unfairness. But the Court rightly noted that fairness in this context presented an amorphous standard. Should states think about individual voters, drawing each district to maximize competitiveness? Doing so risked creating overwhelmingly partisan congressional delegations based on razor-thin majorities. Should states care more about general outcomes, creating a proportional number of “safe” seats for each party? In so doing, they might relegate individual voters in those districts to electoral irrelevance. Fairness in any set of districting criteria, then, contained a complicated array of trade-offs that better suited a body tasked with creating legal standards than one made to interpret them.

Second, even if the Court determined a workable standard, that standard’s application confounded categories, involving instead minute questions of degree. Quoting precedent, Roberts asked, “How much partisan dominance is too much?” Discerning degrees of deviation, again, seemed a better fit for legislative bodies, not judicial.

Thus, the majority rightly chose to stay out of this partisan gerrymandering issue. Its reasoning rested heavily on understanding its role within our constitutional system.

Congress’s Role: Non-Delegation

We turn next to Congress. It exercises the legislative power in our system, crafting the laws that the other national institutions enforce and interpret. Separation of powers obviously requires that another branch cannot usurp this legislative power against Congress’s will. But it also says that Congress cannot give up its power willingly, either, a principle that the Court has called the non-delegation doctrine. This principle also concerns knowing one’s role. Congress is constructed by the Constitution to best create the regulations that order our common lives. The other branches are not so constituted and are, in fact, set up to fail when they try.

This term’s Gundy v. United States considered whether or not Congress had ceded its legislative power to the executive branch in SORNA, the Sex Offender Registration and Notification Act. This 2006 law established a national system to register sex offenders and to notify communities wherein they resided after incarceration. Yet, while stating in detail how this system applied to subsequent offenders, the law seemed to give the attorney general carte blanche regarding whether, how, and when to apply these rules to those convicted before the law’s passage. In other words, it gave a member of the executive branch lawmaking power.

Justice Elena Kagan wrote the plurality opinion. In it, she argued that SORNA did not violate the non-delegation doctrine because it merely gave the attorney general discretion as to how quickly to implement the law, not whether or how. The dissent persuasively critiqued this interpretation of the law, showing how it already had been implemented in the much broader, legislative fashion.

The real import of the case, however, portended a bigger battle over Congress’ role in our constitutional system. While paying lip service to separation of powers, Kagan argued that leaving legislation to Congress has not happened for a long time and now would not work if tried.

On the first count, she is right. For more than a century, Congress, with varying speed, has given over regulatory authority to a perpetually increasing bureaucratic structure: the Administrative State. As the dissent showed, this long march of delegation drifts us ever further from our Constitutional system and ever more toward rule by career administrators, not the people’s representatives.

On the second count, she may also be right — to a degree. We have become so dependent on agency lawmaking that shifting responsibility back to a listless Congress presents extensive practical problems. But that is cause for prudent, even if gradual, correction, not sighing capitulation. Congress must not only recall its role; it must also reclaim it.

The Executive’s Role: The Census

The final constitutional power goes to the executive branch. This power, for which the branch is named, concerns enforcing the laws. While Gundy pertained to why the executive branch should not create statutes, the Census case concerned how it best executes existing laws.

The census case, Department of Commerce v. New Yorkaddressed whether or not the Commerce Department could include a citizenship question in the 2020 Census. Chief Justice Roberts wrote the majority opinion, one joined at different times by various other justices. He first showed that determining whether to include the question or not involved enforcing, not making, the laws. To understand this point, we must recognize that laws do not describe every component of their application. And how could they? Instead, they create zones wherein the executive can act to enforce the law. These zones cannot be too wide so as to constitute legislative delegation. But they can be wide enough to allow some discretion within the executive branch.

The Court rightly found that Congress gave the Commerce Department choice in whether or not to include a citizenship question, so long as it gave a reasonable, honest justification for doing so. That determination then fell within the executive branch’s role. To find otherwise would actually misunderstand the judiciary’s purpose. Roberts explained that “In overriding [a] reasonable exercise of discretion, the court [would] improperly [substitute] its judgment for that of the agency.” While the Court’s additional decision to question the honesty of the Commerce Department is highly debatable, its general deference on the power to include the question was correct.

The majority also rightly sided with the Secretary of Commerce over and against the bureaucracy. A split occurred within the Department regarding the wisdom of the question’s inclusion. While the bureaucratic Census Bureau argued against adding the inquiry, Secretary of Commerce Wilbur Ross decided for it.

Chief Justice Roberts sided with Ross. First, the law controlling the census “authorizes the Secretary, not the Bureau, to make policy choices within the range of reasonable options.” If judges apply the law rather than make it, then the Court must side with the official, legally given decision-making power. But Roberts also argued that deciding otherwise entailed “subordinating the Secretary’s policymaking discretion to the Bureau’s technocratic expertise.” In so doing, Roberts sided with the consent of the governed against the rule of bureaucrats. The political appointee in the executive branch — nominated by an elected president and subject to his control — should make these decisions, not unelected, unaccountable administrators.


In the foregoing cases, we saw a defining issue for the 2018 term. The Supreme Court returned often to considering the place our various national institutions occupy within the constitutional system. While this docket set up well the ongoing debate, the task is far from complete. Much remains for future terms. Much remains for us, the American people, as well. For these debates about the role of each branch implicated fundamental political principles, including the rule of law and consent of the governed. As a government of, by, and for the people, we must not leave the discussion to the branches alone. “We the People” are the ultimate adjudicators of these questions. We, ultimately, must make the decisions. We, too, must know our role.

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