Linda Greenhouse, Constitution-in-Exiler
10:00 AM, Jan 24, 2011 • By ADAM J. WHITE
It's a surprise to see a New York Times columnist call for a restoration of the Constitution in Exile. It's an even bigger surprise to see that the columnist is Linda Greenhouse.
For years, liberal legal commentators have been fond of accusing conservatives of pining for the restoration of the "Constitution in Exile" -- a return to pre-FDR conservative constitutional jurisprudence that would (by their telling) roll back the New Deal, the Great Society, and more or less every other major liberal legislative triumph of the twentieth century. But while Jeffrey Rosen, Linda Greenhouse, Jeffrey Toobin, Cass Sunstein, and others often invoked phrase, few if any conservative legal thinkers have actually employed the phrase affirmatively, other than one federal judge in a magazine article fifteen years ago.
The "Constitution in Exile" was coined by Judge Douglas Ginsburg in a 1995 article for Regulation magazine, to describe a number of structural constitutional doctrines that had fallen out of favor in the 20th century. First among the lost doctrines was the "Nondelegation Doctrine": the theory that the Constitution implicitly precludes Congress from granting the president or his administration unbounded discretion in regulating a particular subject, because the grant of authority without limits or guideposts would effectively be an unconstitutional "delegation" of Congress's legislative power to the executive branch.
Whatever the theoretical merits of the Nondelegation Doctrine, as a practical matter it is dead as a doornail. Its last gasp was in 1999, when Judge Ginsburg and one of his colleagues on the D.C. Circuit (over the dissent of a third judge) struck down part of the Clean Air Act as unconstitutional. The court held that the statutory language violated the Nondelegation Doctrine by providing "no intelligible principle" to guide EPA's enforcement.
When the D.C. Circuit issued that decision, no writer was more aghast than then-New York Times Supreme Court beat writer Linda Greenhouse who, in an article titled, "An Arcane Doctrine Surprisingly Upheld," stressed that modern "Justices have consistently upheld broad Congressional delegations of authority and have shown no appetite for reviving the old doctrine." Months later, she quoted the Clinton administration's description of the decision as being "a radical departure from settled law" -- a line she used in yet another article barely one week later.
In both of those articles, she stressed that myriad federal statutes grant federal agencies practically unlimited discretion. "The Clean Air Act is hardly unique in the amount of administrative discretion it leaves in the hands of the agency; if this law is unconstitutional on the basis of excessive delegation, then so, plausibly, are many others. ... These delegations and countless others -- with the exception of two New Deal-era initiatives struck down in 1935 -- have been upheld by the Supreme Court."