President Donald Trump’s newest Supreme Court pick will offer conservatives an opportunity to start achieving a long-sought goal: chipping away at the vast administrative state that Americans have known since the New Deal.
The rightward shift could imperil much of the agenda of a potential Biden administration or a Democratic Congress, making it easier for the courts to block initiatives such as a "Green New Deal" or vast expansion of Medicare. The addition of a sixth conservative justice — expected to be Amy Coney Barrett — could provide the final ingredient needed for Republicans to restrict or reverse decades-old precedents that have protected a range of government programs from legal challenges, including regulations on health care, the environment, technology and the financial industry.
Some of the right-leaning legal arguments needed to block aggressive government programs have been just a vote or two shy of prevailing on the Supreme Court in recent years. Barrett, now a federal appellate judge, has called on the court to be more ready to overturn its constitutional precedents.
Such a change would elate conservatives frustrated by Washington’s growing web of agencies and regulations — too often untethered, they say, from any specific directions from Congress. But liberals counter that long-abandoned legal theories shouldn’t block elected leaders and their appointees from meeting challenges and carrying out the will of the voters.
“Without question a 6-3 Court captured by right-wing and corporate interests could shut down much of the progressive agenda, if it could act with impunity,” said former Sen. Russ Feingold (D-Wis.), president of the progressive legal nonprofit the American Constitution Society. “Clean water, clean air, food and drug safety, regulation of the health care and health insurance industries, consumer protections and workers’ rights (up to and including the right to organize) are all on the chopping block in that scenario.”
Nicholas Bagley, a law professor at the University of Michigan, said expanding the court’s existing five-person conservative bloc makes it all the more likely for once-unorthodox views of government power to prevail.
“The thing that's different with a 6-3 court versus a 5-4 court is you’ve just got a bigger margin for crazy,” Bagley said, noting that the outcomes of several high-profile Supreme Court cases in recent years have flipped because of just one conservative defection. “I just think that people underestimate dramatically the aggressiveness and zealotry of the conservative legal movement.”
Conservative legal scholar Jonathan Adler agreed that the Supreme Court’s new lineup may soon be willing to place more limits on federal power than has been seen in the recent past. But he said it’s unlikely to bring about one of the worst fears of liberals — a return to the early decades of the 20th century, when the high court repeatedly struck down rules and laws regulating wages, work hours and other labor policies.
“They’re not going to endorse some kind of broad libertarian theory of the Constitution,” said Adler, a law professor at Case Western Reserve University.
The attacks on the regulatory state could include two major arguments that conservative lawyers and judges have made in recent decades: Courts have given agencies too much leeway to write rules that go beyond what lawmakers have prescribed. But at the same time, they say, a dysfunctional Congress too often writes vague laws that leave major policy decisions up to the bureaucracy.
By placing sharper limits on the agencies, and restricting the amount of power that Congress can delegate to the executive branch, a more conservative SCOTUS could go far beyond just rolling back individual regulations — such as the Obama-era climate, air pollution, auto safety and water protection rules that Trump has taken steps to reverse. It could also make it harder for future Democratic administrations to enact new ones, even with lawmakers’ support.
But it could also mean fewer legal fights in the future if Congress started passing laws with clearer directions for agencies, some conservatives contend.
“There shouldn’t be so much litigation over hugely important rules,” said Misha Tseytlin, a partner at Troutman Pepper and the former solicitor general of Wisconsin who challenged the Obama administration’s EPA regulations. “Rules should be to fill in the details of policy that Congress enacted rather than having wild policy swings when you have a change of administration where you have the exact same law on the books.”
Partying like it’s 1935
There are “two big gorillas in the room” when it comes to the legal arguments the Supreme Court could use to rein in the executive branch, Tseytlin said.
The first, known as the “nondelegation doctrine,” allows judges to strike down laws that are too vague about the powers they grant to the executive branch. The court has used it only twice to strike down laws, both times involving New Deal programs in 1935, but five sitting justices have expressed an interest in rejuvenating it.
It’s “a real sleeper area,” Tseytlin said. “Because if a statute violates the nondelegation doctrine, the statute is invalid, it’s entirely struck down.”
The doctrine holds that Congress cannot delegate its lawmaking powers to the executive when it passes laws, at least not without providing an “intelligible principle” to guide an agency. As recently as 2001, Justice Antonin Scalia rejected an attempt to use the doctrine to strike down Environmental Protection Agency air pollution regulations. But two decades later, the Supreme Court’s conservative wing appears to be champing at the bit to go the other direction.
The court last year issued a fractured ruling in a challenge to a sex offender registry law that became a test case for nondelegation. With just eight justices participating in the decision, the conservative wing could muster only four who expressed interest in applying the doctrine more aggressively, including Trump appointee Neil Gorsuch.
Fellow Trump appointee Brett Kavanaugh, who didn’t participate in that decision, later wrote that Gorsuch’s argument “may warrant further consideration in future cases.” And with Trump’s upcoming Supreme Court nominee likely to join the court, the way would be paved for action, said Aaron-Andrew Bruhl, a law professor at William and Mary Law School.
Liberals have expressed alarm at the potential fallout if the court were to begin rejecting laws that delegate major decisions to the executive branch, because that would cover a lot of laws that Congress has enacted over the decades. The Affordable Care Act, for example, has required thousands of pages of regulations sketching out the details of everything from insurance coverage rules to discrimination protections to Medicaid expansion.
In the sex offender case, Justice Elena Kagan wrote that if the law in question were unconstitutional under the nondelegation doctrine, “then most of Government is unconstitutional.”
“The difficult thing there is it’s potentially really disruptive if you want to start imposing serious limits on congressional delegation,” Bruhl said. “So much of the existing structure of regulation depends on delegation.”
To avoid the potentially disastrous results that might come with striking down laws wholesale, the Supreme Court might instead interpret those laws as giving the agencies narrow powers. That would strengthen judges’ ability to reject expansive implementing rules while sidestepping the constitutional concerns, Bruhl said.
The end of deference
A related conservative argument seeks to undo the Supreme Court’s “Chevron doctrine,” which has been crucial to upholding major federal regulations on issues ranging from climate change to health care to payroll taxes.
The doctrine stems from a unanimous 1984 Supreme Court decision, Chevron v. Natural Resources Defense Council, that courts have applied to all manner of executive actions under both Republicans and Democrats. It requires judges to consider whether a statute directing agency action is ambiguous — and if it is, to defer to the agency’s interpretation, so long as it falls within the wide realm of reasonableness.
At first, Adler said, the Supreme Court’s decision delighted Republican presidents because it reined in the powerful D.C. Circuit Court of Appeals, which reviews many federal regulations and was seen four decades ago as an “activist and progressive” bench.
“Chevron was built upon and advocated and reinforced by the Reagan and first Bush administrations because they saw it as a way of making it easier for a conservative administration to adopt more flexible regulatory policies that would otherwise be blocked by what was initially a fairly progressive D.C. Circuit,” Adler said.
But in recent years, especially under the Obama administration, conservatives have grown critical of Chevron for ceding judicial interpretive powers to the executive branch. In 2016 and 2017, House Republicans twice passed legislation to end Chevron deference, though it never made it past the Senate.
Gorsuch and Justice Clarence Thomas have both criticized the doctrine, while Kavanaugh said during his confirmation that he would strike down any regulation "that’s outside the bounds of what the laws passed by Congress have said.”
Barrett has not spoken specifically about whether or how Chevron deference should be limited. But in a fight this year over the Trump administration's public charge rule, she broke from two other judges and voted to defer to the agency, showing how judges can use Chevron to uphold conservative regulations.
Revisiting Chevron is “a prime candidate for a change that will make a difference in the way we think about the administrative state,” said Randolph May, president of the Free State Foundation, a free-market think tank. Because it limits judicial authority in certain ways, Chevron can lead to a “bouncing ball” effect as changes in political control of the executive branch mean agencies are frequently reversing themselves on regulatory decisions, May argued.
One recent example concerns net neutrality, an effort championed by the Obama administration to prohibit internet service providers from limiting or favoring some types of content on their networks. The Obama-era Federal Communications Commission used an ambiguous statute to classify ISPs as subject to regulation, a move the D.C. Circuit upheld in 2016 while citing Chevron. Under Trump, the FCC reversed that policy call — and again, the D.C. Circuit upheld it based on Chevron.
Limiting Chevron deference may become even more important if Joe Biden wins the White House but Democrats fail to capture the Senate and cannot pass new laws. In that case, Bruhl argued, Biden would be left to push policies on major issues like climate change via existing statutes — but could face a much harder time than Obama did in withstanding the inevitable court challenges.
For the moment, Chevron survives, even with the Supreme Court’s current conservative majority. Katie Keith, a health law expert at Georgetown University, noted that federal judges — including recent Trump appointees — have actually shown significant deference to agency actions in several high-stakes cases. Those include decisions in which judges rejected attempts to block the Trump administration from increasing hospital pricing transparency and allowing insurance plans that don’t meet Obamacare’s coverage requirements.
But Keith suspects that might change if the White House flips in November.
“If it's Biden, I think they really push forward on this and do what they can to limit the administrative state,” she said. “That's been a goal for a very long time.”
Restricting or even ending Chevron deference could backfire, some experts have warned — it could give liberal judges more power to strike down actions by Republican administrations. May conceded that that could happen in specific instances, but said he supports restraining Chevron primarily because of separation-of-power concerns.
A more far-reaching question concerns whether a conservative Supreme Court would return the U.S. to the so-called Lochner era, the period from the 1890s to 1937 when the justices repeatedly struck down business and workplace regulations. A Trump-appointed federal judge in Pennsylvania raised eyebrows earlier this month when he struck down the state’s coronavirus-related shutdown policies while citing the 1905 Lochner case that gave the era its name.
In these unprecedented times, courts might revive some limits on government powers that haven't been imposed in some time, Adler said. But that doesn’t mean Lochner is back with a vengeance.
"Are we going to see what anyone would characterize as a true laissez faire jurisprudence that says no government at any level can regulate certain things?” he said. “I think that’s very unlikely both given who’s on the court now and the people who are being talked about as possible Ginsburg replacements."
Other court-watchers say the conservatives on the bench simply haven’t decided yet which route to take in hobbling the government’s regulatory authority.
“There really is a groundswell among conservative jurists to try to undo this strong deference that courts have given to agencies, but thus far they've not yet coalesced around what the alternative should be,” said Ryan Owens, a political science professor at the University of Wisconsin, Madison, who wants the courts to rein in the power of agencies to set rules and regulations. “That's the one thing that's really hanging this up.”