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."
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."