SCOTUS wants to kill the administrative state

Since 2022, the Supreme Court has issued monumental rulings invalidating the right to abortion guaranteed by law. Roe v. Wade AND Planned Parenthood vs. Caseyexpanding the Second Amendment right to carry concealed firearms and repealing the use of racial classifications in higher education admissions.

As expected, the decisions galvanized the conservative legal movement. Shortly after their issuance, federal courts were considering challenges to the nationwide legality of the nation’s most widely used abortion pill (mifepristone), a federal law barring people with domestic violence restraining orders from carrying firearms, and the racially sensitive admissions policy at Thomas Jefferson High School, a prestigious Virginia prep school (the latter case predated the Supreme Court’s 2023 affirmative action decision involving Harvard and the University of North Carolina). Each of these challenges reached the Supreme Court last year.

Perhaps to the surprise of those who see the Supreme Court as the front-line warrior on the conservative side of the culture war, the court soundly rejected these allegations.

The Abortion Pill Case Food and Drug Administration vs. Alliance for Hippocratic Medicine, led to a unanimous opinion (issued June 13) finding that a group of “concerned physicians” had no legal standing to seek a court revocation of any of the FDA’s approvals for mifepristone because the physicians apparently had not suffered direct harm from the existence of the drug — which, in any case, they had never prescribed and were not forced to do so.

A challenge to 18 U.S.C. § 922(g)(8), which requires disarming of individuals with domestic violence restraining orders, was dismissed by an 8-1 vote on June 21. Ultimately, the court announced on February 23 that it would not even agree to hear a challenge to a Virginia high school’s race-based admissions policy, leaving in place a ruling by the Fourth Circuit Court of Appeals upholding the policy.

While the court has retreated from these culture war issues this semester, it has moved further into what has been called the conservative war on the administrative state. This “war,” in short, involves efforts by courts to limit the power of federal government agencies, which could have profound consequences for the future of environmental and economic regulation.

Since at least the 1980s, conservative commentators, lawyers, and judges have argued that much of the administrative state violates the constitutional separation of powers and basic democratic principles because it includes unelected executive officials exercising quasi-legislative authority. The campaign’s sponsors—chief among them petrochemical oligarch Charles Koch—want to strip away once and for all the minimal constraints that government has placed on their power.

The state’s administrative decision that probably attracted the most media attention this semester was a joint opinion on two matters — Relentless, Inc. v. Department of Commerce AND Loper Bright Enterprises v. Raimondo — which overturned something known as the “Chevron deference.” The Chevron deference comes from what at the time was a relatively uncontroversial (and 9-0) 1984 case called Chevron USA vs. Natural Resources Defense Council. Chevron ruled that in the event of ambiguity in statutory provisions, courts should be guided by the interpretation of a federal agency’s powers arising from those provisions.

Over time, many (but not all) conservatives have criticized Chevron’s deference for making laws unto itself in federal agencies, for perversely encouraging Congress to pass ambiguous statutes, and for depriving courts of their proper role in interpreting the law. Liberals, in turn, have defended Chevron’s deference as a necessary benefit of the doubt granted to experts working in federal agencies, whose jobs would be very difficult indeed if they were constantly being undermined by judges who had no idea how, for example, to regulate the stock market or protect endangered species. It is no wonder that in Raymond, six conservative and three liberal Supreme Court justices took divergent positions.

In her dissenting opinion, Justice Elena Kagan argued that the death of respect for Chevron is tantamount to the death of the administrative state. Liberal media commentators have adopted a similarly grave tone. The reality is that in itself Raymond is not that onerous. First, he expressly refused to invalidate any other cases that relied on Chevron. In addition, Chevron has been approaching the status of what David French and Sarah Isgur (paraphrasing Antonin Scalia) call a “zombie precedent”: still technically good law, but generally ignored and almost never invoked by the Supreme Court — neither alive nor dead.

But still, if Raymond is being heard alongside other cases decided this semester, Justice Kagan’s apparent alarmism makes more sense. Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the court (in another 6-3 split) held that the six-year statute of limitations for suing federal agencies “starts to run only when a plaintiff has a complete and current cause of action” — not when the rule is issued. As a result, newly formed companies could potentially sue regulations first issued decades ago.

More importantly, in Securities and Exchange Commission v. Jarkesy (reiterated, 6-3), the court held “that the Securities and Exchange Commission’s (SEC) routine practice of imposing administrative fines to punish securities fraud violates the U.S. Constitution’s Seventh Amendment ‘right to a jury trial’ in all ‘common law actions.’” This means that not only the SEC — but many other federal agencies that impose fines — could be deprived of an enforcement mechanism and an important source of revenue for themselves.

Those decisions come after two previous terms in which the court also curtailed the administrative state by invalidating agency actions of “enormous economic and social significance,” including the Biden administration’s student loan forgiveness plan and the Environmental Protection Agency’s Clean Power Plan. The court reasoned that such “major issues” require specific congressional authorization. In theory, that sounds logical; in practice, it limits Congress’s ability to delegate and ensures that “major issues” are relegated to Congress, where they typically die.

The court is not out of the culture war. Lower courts have been flooded with challenges to racially sensitive admissions policies in the wake of the court’s 2023 affirmative action decision; the Supreme Court can’t avoid these cases forever. The court’s sweeping rejection Roe AND Casey in 2022 Dobbs vs. Jackson Women’s Health Organization The decision should keep him out of any future questions about the constitutional right to abortion, but he has already had to awkwardly avoid an Idaho case this semester that argued that states’ near-total abortion bans violate the Emergency Medical Treatment and Jobs Act of 1986. The court is sure to hear more gun control cases: It has already agreed to hear one involving “ghost guns,” and it will sooner or later hear one involving assault weapons bans. On another front in the culture wars, the court also agreed to hear a case next semester involving state bans on gender-affirming care for minors.

But it seems clear that the court does not plan, as many commentators and liberal justices predicted, to Dobbs decision — a complete return to the cultural norms of the 1950s by overturning precedents protecting same-sex marriage, consensual sex for purposes other than procreation, contraception, and even interracial marriage. Such cases are not heard in lower courts, and no one in the conservative legal movement seems interested in bringing them. On the other hand, the state’s administrative cases flow from long-standing plans of the conservative legal movement and expand in scope and reach from term to term.

Of course, the court’s decisions in these cases can be defended on various grounds. Conservatives who criticize the administrative state might even find common ground with leftists who are skeptical of an unconnected technocracy or an overly powerful executive. But the issue is not the merits or demerits of the administrative state. It is the risk of an even less democratic institution—an unelected cabal of Yale and Harvard graduates—making those judgments for us.

For the left, these risks are serious, but not as catastrophic as the Supreme Court’s liberal justices would have us believe. The war on the administrative state will certainly limit what can be accomplished through executive action, which has often been necessary to break congressional gridlock and deliver important victories like the Deferred Action for Childhood Arrivals (DACA) plan, a nationwide moratorium on COVID-19 evictions, and tougher antitrust enforcement. It will also essentially give the conservative legal movement—which controls not only the Supreme Court but, thanks to Donald Trump and Mitch McConnell, the nation’s district and appellate courts—a license to overthrow laws or agencies it doesn’t like.

Yet major domestic policy proposals coming from the left could not—even in the best of times—be achieved through executive action or agency regulation. Because of Congress’s dominant role in the constitutional structure, especially its control over the federal purse strings, things like universal health care, expanded workers’ rights, serious efforts to address climate change, and wealth redistribution would require legislation. And the constitutionality of such legislation, if it ever gets passed, would not be directly threatened by a court war on the administrative state.

For now, the best strategy is to call the Supreme Court’s bluff: to put less faith and power in the administrative state and focus instead on fighting for legislation. If the court then goes to war on progressive legislation, it may be time to declare war on the court, as the left did in the 1930s.