In an earlier post, I observed that Learning Resources is not really a constitutional law case. The bulk of the Chief Justice's controlling opinion focuses on statutory interpretation, sprinkled with some major question analysis. But there is very little straight-up conlaw.
Justice Thomas, as usual, is in a league of his own. He wrote a through study of how the non-delegation doctrine ought to apply to different types of enumerated powers. In short, Congress cannot delegate "core" powers to the President because the exercise of those powers can deprive people of the private rights of life, liberty, and property. By contrast, Congress can delegate "non-core" powers to the President because the exercise of those powers would, at most, violate public rights, which are mere privileges, and would not deprive people of life, liberty, and property. I think you need to read the entire dissent to understand the full breadth of Thomas's vision, but these paragraphs offers a succinct summary:
The Constitution's separation of powers forbids Congress from delegating core legislative power to the President. This principle, known as the nondelegation doctrine, is rooted in the Constitution's Legislative Vesting Clause and Due Process Clause. Art. I, §1; Amdt. 5. Both Clauses forbid Congress from delegating core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property. Neither Clause prohibits Congress from delegating other kinds of power. Because the Constitution assigns Congress many powers that do not implicate the nondelegation doctrine, Congress may delegate the exercise of many powers to the President. Congress has done so repeatedly since the founding, with this Court's blessing.
The power to impose duties on imports can be delegated. At the founding, that power was regarded as one of many powers over foreign commerce that could be delegated to the President. Power over foreign commerce was not within the core legislative power, and engaging in foreign commerce was regarded as a privilege rather than a right. Early Congresses often delegated to the President power to regulate foreign commerce, including through duties on imports. As I suggested over a decade ago, the nondelegation doctrine does not apply to "a delegation of power to make rules governing private conduct in the area of foreign trade," including rules imposing duties on imports. Department of Transportation v. Association of American Railroads (2015) (opinion concurring in judgment). Therefore, to the extent that the Court relies on "'separation of powers principles'" to rule against the President at 8 (opinion of Roberts, C. J.), it is mistaken.
