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Linda Greenhouse, Constitution-in-Exiler

10:00 AM, Jan 24, 2011 • By ADAM J. WHITE
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Thus, by the time the Supreme Court heard the case, Greenhouse was not too shy to call the Nondelegation Doctrine a "long-discredited" doctrine. And when the Court unsurprisingly (and unanimously) reversed the lower court, Greenhouse's glee was palpable.

But a decade later, in her new column, Greenhouse writes that another federal law passed by Congress was "such a broad and unfettered delegation of essentially legislative authority" that it "raises substantial constitutional questions, as the [relevant Cabinet] secretary, a former Supreme Court law clerk, surely sensed." Greenhouse argues that the statute, passed in a fit of "momentary infatuation with" the problem at hand, "inflicted real damage on domestic law."

Times certainly do change! Greenhouse's new lines might as well have been taken directly from Judge Ginsburg's seminal Regulation article, or from the minds of the Constitution-in-Exile crowd so often conjured by Greenhouse, Rosen, and the others.  

So what accounts for Greenhouse's startling about-face? A decade's reflection on the merits of the D.C. Circuit's overturned decision? A sudden appreciation for the long-lost conservative theories of Chief Justice Taft? A thoughtful reading of Judge Ginsburg's latest law review article on the subject of the Nondelegation Doctrine?

Probably not. Here's a more likely answer: a decade ago, the Nondelegation Doctrine was an anachronistic, activist threat to the Clean Air Act. But today, the Nondelegation Doctrine seems a lot more appealing to Greenhouse, who is writing to criticize not the Clean Air Act but the REAL ID Act -- specifically, the Real ID Act's provision authorizing the secretary of Homeland Security to "waive all legal requirements" that the secretary, in his or her "sole discretion, determines necessary to ensure expeditious construction of the barriers and roads [comprising the border fence project]."

Whether or not the Real ID Act's waiver authority was prudent as a matter of public policy, it surely was no less expansive a grant of power than that given to the EPA in the decade-old Clean Air Act case. If anything, it was a dramatically lesser grant of power: The REAL ID Act authorized the administration to waive laws only to the extent necessary to achieving discrete aim of building a fence. The Clean Air Act provision, by contrast, authorized immense regulation of the foundation of the entire national economy, in perpetuity.  

Greenhouse closes her column with the pithy warning, "Good fences may make good neighbors, but bad fences make bad law." Perhaps. But while we're offering aphorisms, I would point her to a different one: "Hypocrisy is the homage that vice pays to virtue."

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