Reigning In CMS’ Authority

Home care providers remain concerned about the enormous power wielded by regulators, including the Centers for Medicare and Medicaid Services (CMS). In some instances, providers are concerned that regulators exceed the authority granted to them by Congress and essentially write law through regulations, guidance, interpretive guidelines, etc. The U.S. Supreme Court recently considered whether to reign in the authority of the executive branch of government exercised through agencies like CMS. In Gundy v. United States (No. 17-6086; U.S. Supreme Court; June 20, 2019), the Court essentially said that it was open to reigning in the power of federal agencies to interpret statutes, but wasn’t going to do it in this case. In other words, the Court said, “Not quite yet!”


This case is based on the Sex Offender Registration and Notification Act (SORNA). Herman Gundy pled guilty to sexually assaulting a minor before SORNA was enacted and was imprisoned. He was released from prison in 2012 and moved to New York, where he did not register as a sex offender. A few years later, he was convicted of failing to register in violation of SORNA and appealed.

 Gundy’s appeal was based on the argument that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to “specify the applicability” of SORNA’s registration requirements to offenders convicted prior to the enactment of SORNA. The U.S. Constitution says that all legislative powers are vested in Congress and that Congressional powers cannot be further delegated. Congress cannot transfer to another branch, such as the executive branch, powers that are strictly and exclusively legislative.

 At the same time, the Constitution does not deny Congress the necessary resources of flexibility and practicality to allow Congress to perform its functions. Congress may seek assistance from other branches of government in the form of substantial discretion to implement and enforce statutes. The U.S. Supreme Court has decided in many cases that statutory delegation from Congress to the executive branch is Constitutional as long as Congress establishes “intelligible principles” to which other branches of the government must conform. Statutory interpretation is essential to decide whether Congressional delegation is permitted. The key is to figure out what tasks Congress delegates and what instructions it provides. In the Gundy case, the U.S. Supreme Court decided that Congressional delegation to the Attorney General to decide what offenders convicted before enactment of SORNA must do was appropriate.

However, as Jeannie Suk Gersen pointed out in “The Supreme Court is One Vote Away From Changing How the U.S. is Governed,” an article that appeared in The New Yorker on July 3, 2019, four liberal Justices decided against Gundy. Three conservative Justices said that SORNA gave the Attorney General “free rein to write the rules” and was unconstitutional. Justice Alito cast the deciding vote that enabled liberals to prevail in this case, but his concurring opinion is an indicator that the victory may be short-lived. Justice Alito said that if the majority “were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A conservative majority was lacking in this case because the case was argued before Justice Kavanaugh was sworn in. Ms. Gerson says:

 We are now explicitly on notice that the Court will likely abandon its longstanding tolerance of Congress delegating broadly to agencies. What’s at stake is the potential upending of the constitutional foundation of the so-called “administrative state.” Today’s reality is that agencies, not Congress, make most federal laws.

 The next time a similar case is heard by the Court, there is likely to be a very different result. Watch for it! 

©2019 Elizabeth E. Hogue, Esq.  All rights reserved.


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