The Supreme Court Is Poised To Shift Executive Branch Power
The Supreme Court conservatives, exuding the heady self-confidence of a team that knows it cannot lose, haven’t been coy about the jurisprudence they want to reshape or tear down.
Religious liberty, abortion, guns — the Court has recently taken up and dispensed with a whole swath of cases at astonishing speeds, often dramatically changing the bench’s long-held posture in relative silence through the shadow docket.
But perhaps on no topic has the Court telegraphed its intent more clearly than the administrative state, the power of federal agencies to regulate and make rules. The dry name belies a system absolutely critical to every corner of American life.
“If I want to chemical waste in a swamp, I’d prefer that the federal government not have power to regulate that,” Julian Davis Mortenson, professor at the University of Michigan Law School, told TPM. “If I want to pay people working in my factory a miserably tiny wage, or employ 12 year-olds, I’d rather the federal government not have the power to make a rule against that.”
The Court is now stocked with justices hungry to shift the power back in the direction of those nonregulatory interests. In doing so, they’ll really be shifting power to themselves.
“If the Supreme Court truly honored the rule of law and precedent, then they would acknowledge the power of the agencies that was granted to them by Congress in order to save our environment,” Sen. Elizabeth Warren (D-MA) told TPM of a recent illustrative case involving the Environmental Protection Agency. “But this is an extremist Supreme Court, so I’m very worried about the outcome.”
Because Congress is already paralyzed on critical issues, the prospect of a future in which the administrative state is rendered toothless is also a future in which unelected, conservative Justices become the arbiters of what the government can and can’t do. It’s a right-wing fantasy, cherished and developed for decades, come to life.
1930s: New Deal, New DoctrineTo understand how we got here, we need to foray back to President Franklin Delano Roosevelt’s New Deal. The Court struck down some very broad provisions of the New Deal using something called the nondelegation doctrine — the idea that Congress cannot outsource its legislative powers to other entities.
But that movement was short-lived.
“There was a revolution in jurisprudence during the second half of the New Deal,” Mortenson said.
That change in thinking, helped along by retiring justices that were replaced by Roosevelt’s nominees, largely governed how the high Court continued to think until recently: that the courts will never be in a good position to answer questions about how much delegation is too much without relying on judges’ policy preferences.
It’s now been almost a century, and the Court has never again struck down a regulation based on the nondelegation doctrine.
Instead, courts for many years largely stuck to the same basic framework: Congress gives agencies power through laws it passes, and the experts who make up that agency are the best suited to interpret and implement those statutes. For example, if Congress tells the EPA in a statute to regulate pollution with the best technology available, EPA experts are tasked with translating that into specific rules for industries to follow.
Agencies have the expertise and nimbleness to pass regulations and make rules that Congress lacks. Today’s Congress, nearly inoperable thanks to the Senate filibuster and hyperpartisanship, can hardly muster the effort to pass a handful of laws every year. Imagine tasking the legislative branch with passing a new law every time an agency wants to tweak a regulation about factory protocols or carry out an affordable housing program — the vision dreamt of by nondelegation advocates.
Those advocates, some of whom currently sit on the Supreme Court, maintain that rulemaking through the agencies, nestled in the executive branch, is undemocratic: the officials who staff the agencies are elected by no one, after all.
It’s an argument cloaked in disingenuousness and a feigning of ignorance about how the government works. Even if you don’t buy the counter-argument that agencies are filled out by the President who is directly accountable to voters, it’s simply not the barely-functioning Congress that would become empowered by agencies losing authority — it’s the judicial branch, the least democratic of the three.
This skewed power balance is already on display. If agencies can’t be trusted to operate with some independence and Congress is unable to pass new laws governing what agencies can do or to clarify old ones, that leaves judges to decide the limits of agencies’ power.
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The Supreme Court Is Poised To Shift Executive Branch Power To Itself
