Neil Gorsuch on Congressional Power and Agency Overreach

Delegation of Legislative Power

• 💡 Justice Gorsuch suggests that Congress may have delegated legislative power to federal agencies, a practice that has grown unchecked.
• ⚠️ He questions the effectiveness of the "intelligible principle" doctrine, which has become "increasingly toothless" over time.
• 🎯 Gorsuch proposes reinvigorating the intelligible principle and asserting that Congress cannot delegate its legislative authority.

Agency Power and Executive Control

• 🐺 Gorsuch uses the metaphor of "wolves" to describe political actors seeking to enhance their power, including agencies exercising both executive and legislative functions.
• 🏛️ He notes that the court has historically allowed agencies to operate with quasi-legislative and quasi-judicial powers.
• ⚖️ If Congress's delegation of power to agencies is no longer to be permitted, Gorsuch argues it becomes more imperative to control these agencies, especially if they are to be controlled by the President.

The "Fenris Wolf" of Constitutional Structure

• 👹 Gorsuch identifies the restriction on executive power within the statute as a significant "wolf" concerning constitutional structure, comparing it to the dangerous Fenris wolf of Norse mythology.
• ⚡ He emphasizes that every political actor seeks to enhance its own power, a truth recognized by the framers.

Judicial Power and Article III Courts

• ❓ Gorsuch inquires about the judicial power, specifically concerning the Tax Court or Court of Claims, and whether removal restrictions might be impermissible if they are Article III courts.
• 🧐 He acknowledges that arguments could be made for this, citing commentators who suggest federal magistrate and bankruptcy courts might be adjuncts to Article III courts.
• 🧩 These situations present "line drawing problems" regarding whether the actions involve judicial or executive power, particularly when adjudicating private versus public rights.