My good friend Adam White has yet another insightful piece in the Weekly Standard, focusing on Justice Kennedy’s questions during Hobby Lobby that highlight the “relationship between structure and rights.” It begins:
We often think of the Constitution as a two-part document: first the original 1787 text, which primarily establishes the government’s structure; and then the amendments, which primarily set forth our rights. But it’s not nearly that simple: Our government’s structure—its federalism and its separation of powers—was devised not just to promote energetic government, but also to secure individual liberty. Or, as Alexander Hamilton stressed in Federalist 84, “the truth is” that the original structural Constitution “is itself, in every rational sense, and to every useful purpose, a bill of rights.”
In recent years, the relationship between structure and rights has been emphasized by Justice Anthony Kennedy. And his comments at oral argument in Sebelius v. Hobby Lobby, the case challenging the Department of Health and Human Services’ “contraception mandate” on religious liberty grounds, suggest that he may be returning to that theme once again.
Because Justice Kennedy occupies the Court’s ideo-logical and tactical center, lawyers and pundits invest great effort in analyzing where he might land in any given case. In 2011 and 2012, as the constitutional challenge to Obamacare’s individual mandate made its way to the Court, all were focused on Justice Kennedy’s well-established habit of invoking the commerce clause, which divides power between the federal and state governments, as a bulwark of liberty.
Later, Adam notes that Ed Whelan and myself (and not many others) picked up on the strong structuralist approach to liberty Kennedy conceived of, in light of his questions about the (seemingly inapplicable) non-delegation doctrine.
In the run-up to the Hobby Lobby case, most discussion focused on questions of whether corporations actually have free-exercise rights, or whether HHS’s regulations truly burden those rights to an unlawful degree. But at oral argument, as legal writers Ed Whelan and Josh Blackman noted, Justice Kennedy seemed keenly interested in questions of constitutional structure. This time, his questions went not to the allocation of power between the federal government and the states, but the allocation of power among Congress and the executive branch.
Congress did not impose the contraception mandate on employers; the administration did. The Affordable Care Act directs large employers only to provide employees the opportunity to enroll in “minimum essential coverage,” pursuant to HHS’s implementation of the act. And so, with Solicitor General Donald Verrilli at the podium, Kennedy stressed the fact that this collision between Obama-care and religious liberty arose not because the statute itself forced HHS’s hand, but because HHS itself had used a vague statute to force the constitutional issue:
Now, what—what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency, to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes?
By mentioning “delegation,” Justice Kennedy seemed to allude to the “nondelegation doctrine,” a longstanding principle of constitutional structure rooted in Article I, Section 1 of the Constitution. That provision vests Congress, and Congress alone, with “all legislative powers” granted to the national government. Thus, the nondelegation doctrine, as developed by the courts, prohibits Congress from “delegating” its legislative power to any agency.
It is not a doctrine that lends itself easily to bright-line standards—as Justice Scalia has observed, “the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.” In practice, as seen in the Court’s precedents, the nondelegation doctrine requires only that Congress specify an “intelligible principle” to guide and limit the agency that applies Congress’s enactment.
In fact, Kennedy’s allusion to “delegation” may have surprised observers, if only because the Court has so rarely invoked the doctrine to strike down statutes. As the Court itself noted in 2001, only twice in the nation’s entire history has the Court used the doctrine to strike down a federal statute—both times in 1935. Or, as Cass Sunstein, a law professor and former Obama White House official, wrote in 2000, “We might say that the conventional doctrine has had one good year, and 211 bad ones (and counting).”
Justice Kennedy views the structural protections of federalism–separating the powers of the state and federal government–not just as a way to protect individual liberty, but as a source of individual liberty. To Kennedy, the states are fonts of freedom, and their decisions to confer liberty, or what he calls “dignity” on people, informs the rights protected by the federal Constitution. This is a largely unappreciated aspect of the Court’s jurisprudence, that has influenced decisions in cases ranging from gay marriage to Obamacare. Recognizing how Justice Kennedy views the dynamic between states, the federal government, and liberty helps to reconcile and explain his increasingly libertarian approach to constitutional law. I am developing these threads for my article, “Substantive Federalism,” which should be ready once Bond is done.