How the Supreme Court Is Attacking Democracy

The Court’s assaults on executive agencies are really attacks on responsive and democratic government.

By Daniel A. Hanley

Tagged DemocracyGovernmentSupreme Court

The Supreme Court is leading the conservative assault on federal administrative agencies—an important, if often hidden, aspect of the American government—in plain sight. Within the last 12 months alone, two Supreme Court decisions, West Virginia v. EPA and Axon Enterprise, Inc. v. FTC, have struck damaging blows to the administrative system. In its coming term, the justices will hear another case, Loper Bright Enterprises v. Raimondo, that could prove to be its death knell.

The consequences would be enormous. Agencies ranging from the Federal Trade Commission to the Post Office not only oversee the day-to-day affairs of government but also serve as arms of Congress by enacting and enforcing regulations. Congress endows agencies with a surfeit of responsibilities, from regulating air pollutants to ensuring the safety of our pharmaceuticals and keeping our markets open and fair. Similarly, many, if not most, of the significant political actions in a President’s term originate from agencies implementing a policy rather than Congress enacting a law. In other words, the modern American government could not exist without the contemporary administrative apparatus.

For this reason, it should come as no surprise that agencies are a prime target for reactionary thinkers and politicians who seek to confine and degrade the role of government. This task has now been taken up by the increasingly conservative federal judiciary. Decisions like West Virginia and Axon have weakened Congress’s ability to legislate, leaving the public ever more dependent on reactionary courts that establish public policy by judicial fiat. The Supreme Court’s decision in Loper will go even further, effectively determining how much regulatory power agencies can exercise. In all likelihood, the conservative majority will rule that courts can decide both the merits and scope of agency policies—a decision that would fundamentally change the structure of America’s administrative apparatus and upend nearly 40 years of precedent.

If the Supreme Court succeeds in its endeavor, the government’s ability to respond meaningfully to social problems will be significantly eroded. Progressive lawmakers must seriously challenge these advances and defend the fundamental purpose of administrative agencies and their role in our democracy. Otherwise, a conservative victory is all but inevitable.

No Agencies Means No Governance

Administrative agencies are merely groups of appointed government officials tasked with carrying out Congress’s legislative directives. In some cases, like the Department of Transportation, the President can direct the agency’s agenda completely. In others, like the Federal Communications Commission (FCC), Congress designs the agency with a degree of separation from the executive branch to give it some independence from the tumultuous political process.

Agencies have been present in the United States since its founding. (The Post Office and Patent Office were two of the earliest.) In the late nineteenth and early twentieth centuries, Congress began creating agencies with broad regulatory powers, such as the Interstate Commerce Commission to regulate the railroads in 1887 and the Federal Trade Commission (FTC) to police all business practices in 1914. Today, there is hardly an industry over which some federal agency does not have regulatory authority.

Agencies are charged with a full slate of responsibilities, many of which would be unfamiliar to most Americans but are essential to both the operation of government and enforcement of the rule of law. In some cases, the laws an agency administers are remarkably broad. Consider the FTC, which is responsible for preventing the use of “unfair methods of competition” and “unfair or deceptive acts or practices” throughout the entire economy. The agency must not only determine what those words mean but also develop a consistent and coherent enforcement policy that faithfully adheres to Congress’s intent. Some agencies, like the FTC or FCC, even have their own judicial-like legal forums to litigate issues.

In addition to carrying out the laws Congress enacts, agencies often conduct deeply technical fact-finding investigations and hold hearings that help inform the public of the laws and uncover issues Congress should solve. Through these mechanisms, agencies can help reorient public policy discussions, bring attention to otherwise ignored problems, and establish a political agenda for Congress. For example, in 2019, the FTC initiated a hearing devoted to understanding how monopolistic corporations restrict repair on their products. The hearing helped spark a more robust national debate, and now members of Congress and various state lawmakers are proposing and enacting legislation to ensure products are repairable.

Agencies are critical to creating a responsive and democratic government.

Agencies can also engage in sweeping enforcement activities, ensuring that the laws Congress enacts are not violated. The FTC, for example, recently proposed a rule to ban all noncompete clauses in employment contracts, potentially providing workers with nearly $300 billion in extra wages each year. Meanwhile, as part of an initiative to crack down on “junk fees,” the Consumer Financial Protection Bureau has proposed a rule that would prohibit the imposition of excessive credit card late fees. Such fees cost Americans billions each year, and they are often hidden until after the charge has been made, leaving consumers with little recourse.

Congress and the courts benefit from agencies being slightly removed from the traditional political process while also being endowed with broad regulatory powers. Lawmakers understand that some problems require complicated solutions that the political process (particularly in our current hyper-partisan environment) makes mostly untenable. The Supreme Court has historically understood this dynamic too, once remarking in a 1985 opinion that “[a]gencies are created because they are able to deal with problems unforeseeable to, or outside the competence of, the legislature.” Similarly, judges have traditionally deferred to agency actions on the grounds that an agency embodies Congress’s legislative will, which courts have historically left alone. Moreover, by deferring to agencies, Congress and the courts can allow a policy to be implemented without dealing with the potential political and partisan pushback if it were enacted through the traditional legislative channels.

Agencies are also heavily staffed with and led by people with high levels of technical expertise of the kind that lawmakers and generalist judges lack. Being led by experts puts agencies in an optimal position to understand the vast range of industries Congress tasks them with regulating, as well as to engage in enforcement actions that faithfully effectuate Congress’s legal mandate, particularly when it is ambiguous or open-ended. Said differently, agencies are where technical expertise connects with policy implementation.

Agencies are critical to creating a responsive and democratic government, one that can both deal with the day-to-day tasks of governing and respond to unexpected and pressing political issues without the need for a direct congressional response. In fact, given their regulatory breadth and the legislative quagmire Congress usually finds itself in, it is no exaggeration to say that administrative agencies are the primary mechanism for reorienting public policy and how laws are enforced in the United States—and, as such, are fundamental to implementing a President’s campaign promises. They embody the true sense of the phrase “Elections have consequences.”

The Mounting Conservative Attack

Over the last two decades, the political right has made dismantling the administrative apparatus of the United States one of its prime objectives. Rejecting nearly a century of understanding about the role of agencies in our democracy, conservative policy thinkers have devised a range of arguments against the continued existence of these “inherently undemocratic and unaccountable” bodies. In part, they claim that administrative agencies epitomize an ever-expanding national government seeking to deprive people of political, economic, and social liberties. Conservatives have been able to construct a favorable audience for these arguments by appointing hundreds of judges to the federal bench over the last several decades. Most notably, former President Trump was able to appoint three justices to the Supreme Court, expanding the conservative majority to six out of nine.

Under the guise of protecting fundamental liberties, conservative judges have manufactured several legal tools that the courts can unilaterally and arbitrarily wield to restrict agencies’ enforcement activities. Two particularly influential arguments have emerged: the “nondelegation doctrine,” which restricts an agency’s structure and how much authority it can receive from Congress, and the “major questions doctrine,” which limits the kinds of regulations an agency can enact.

Two recent decisions aptly illuminate how avidly the Supreme Court now deploys these purposefully cryptic legal tools to centralize its power. Its 2022 decision in West Virginia v. EPA became the Court’s clearest declaration yet that the “major questions doctrine” fundamentally limits agencies’ ability to enact regulations over the industries they supervise. The Court ruled that unless Congress has explicitly granted an agency authority to engage in regulatory activity that concerns issues of “vast economic and political significance,” the federal courts should “hesitate before concluding that Congress meant to confer such authority.” This is a roundabout way of saying that regardless of how broad an agency’s statutory powers are, the agency must either point to clear authorization from Congress when it enacts a rule or regulation of that scope, or the action must be substantially similar to what the agency has done historically. Otherwise, the Court must prohibit it. This decision effectively nullifies some of the broad powers Congress has already given to agencies. Using the major questions doctrine, the Court in West Virginia severely curtailed the Environmental Protection Agency’s ability to restrict carbon dioxide emissions from power plants.

The decision in Axon Enterprise, Inc. v. FTC, issued in April 2023, concerns a party’s ability to challenge the constitutionality of an agency or its congressionally designed structure. In its unanimous decision, the Supreme Court held that administrative agencies cannot adequately consider their own constitutionality within their legal forums, and thus, litigants undergoing agency proceedings can file constitutional claims in federal court at the same time. (Previously, defendants had to wait until litigation within the agency was finished; if they did then sue the agency in a federal court, that court had to take the agency’s ruling into account.) This seemingly minor bureaucratic change drastically shifts the balance of power between agencies and the corporations they oversee. Companies, knowing they are more likely to prevail, will take their claims to federal court more frequently; resource-strapped agencies, knowing they will likely have to litigate on two fronts, have to consider whether they can afford to pursue enforcement actions at all. Although Axon does not itself mention the nondelegation doctrine, the decision makes it far easier for companies to bring claims in which they can use the doctrine to argue that agencies or their actions are unconstitutional.

The West Virginia and Axon opinions provide the clearest signal yet that the Supreme Court intends to entirely dismantle the administrative apparatus of the United States by increasing the federal courts’ power to delay, modify, or nullify agency actions. Perhaps most concerning is the lack of vigorous dissent from the liberal justices—and, in the case of Axon, their active support. While in the West Virginia decision the dissenting liberal justices acknowledged the “anti-administrative-state stance” that permeates the majority opinion, they failed to adequately elaborate on why agencies should have broad powers and why the courts should grant them significant deference. In the Axon case, no liberal justice dissented. (In fact, a liberal, Justice Elena Kagan, wrote the majority opinion.) Given that Axon could lead to cases that will directly weaken administrative agencies or eviscerate them altogether, it appears that the liberal justices do not understand the consequences of the decision they agreed with. Indeed, as a circuit judge noted of the case, Axon Enterprise’s argument—which it is now incentivized to litigate in federal court—“challenges the very existence of the Federal Trade Commission…as unconstitutional.”

It is, of course, true that even if all the liberal justices dissent, the conservatives will still prevail. Nevertheless, vehement dissents signal to the public where a justice stands on a specific issue, clarifying the ideological differences between themselves and the other justices. Dissenting can draw the attention of news outlets and motivate the public and advocates to action by explaining the stakes and consequences of an adverse holding. In other words, dissents function as quasi-organizing statements. Using dissents in this way was routine for conservative justices well before they had an outright supermajority on the bench. The late Justice Antonin Scalia, for example, spent years marketing his arch-conservative textualism in his dissents; nearly ten years into his tenure, he even penned a letter bemoaning to Justice Harry Blackmun that he didn’t “see much use in [repeating himself] anymore.” Eventually, however, after decades of these opinions, Scalia’s ideas would become the de facto standard for all judicial nominees, with Justice Kagan infamously pronouncing at a 2015 event named for him, “We’re all textualists now.” The least the liberal justices can do is explain to the public why administrative agencies are essential for a well-functioning democracy.

All of this is quite concerning, and the situation is likely to get even worse. In Loper Bright Enterprises v. Raimondo, the Supreme Court will decide whether a legal rule known as the Chevron doctrine should be abandoned. The Chevron doctrine, named after the 1984 Supreme Court decision creating it, states that reviewing courts must defer to an agency’s interpretation of a law used to justify a specific enforcement action, such as a rule-making, so long as it is “reasonable.” In other words, the Chevron doctrine is about judicial humility: It says that courts should not evaluate the soundness of particular agency policies. Given its current political bent, in all likelihood, the Supreme Court in Loper will discard the doctrine (or weaken it to the point of meaninglessness), fundamentally changing the administrative structure that has been in place for nearly 40 years. Without the Chevron doctrine, the courts will have even more authority to evaluate agencies’ policies and stymie the regulations they enact.

Conservative Arguments Are Wrong—and Dangerous

The nondelegation and major questions doctrines are not, as conservatives claim, sensible checks on administrative actions. They are nothing more than mechanisms designed to empower the judiciary while simultaneously undermining the institutions Congress created to facilitate the rule of law.

Perhaps most concerning, serious scholarship has revealed that both the nondelegation and major questions doctrines rest on either a mistaken understanding of history or dubious legal theory. Concerning the nondelegation doctrine, Chief Justice John Roberts once asserted that “the Framers could hardly have envisioned…the authority administrative agencies now hold over our economic, social, and political activities.” However, comprehensive reviews of the founding period have found that Congress frequently delegated sweeping authority to agencies. For example, in 1790, Congress created the Patent Board to issue patents to people with “sufficiently useful and important” inventions. Lawmakers provided no other guidance as to how the Patent Board should administer this delegated power.

The claim that administrative agencies lack democratic accountability is one of the frailest arguments from conservative activists. Congress has established a plethora of checks to ensure constant and persistent accountability—something that unelected and nearly unremovable federal judges fundamentally lack. Consider that agencies do not just exist; rather, Congress must create them. Congress sets agencies’ budgets, which determine their operations. The laws agencies enforce are enacted by democratically elected members of Congress. Agency leaders must not only get nominated by the President but then be approved by the Senate. Most agencies require their leaders to meet frequently with lawmakers and submit reports to Congress explaining their recent enforcement actions.

Effectively, the Supreme Court is mandating that Congress legislate only in the way it authorizes.

Agencies also cannot just enact new regulations at will; they must justify them with substantial evidence. The published regulations are often hundreds of pages long, with many of those pages devoted to discussing the evidence and clearly explaining the rule and its effects.

There’s also accountability measures built into the day-to-day running of these agencies. Enforcement actions and other activities must be published in a government-wide daily publication known as the Federal Register. Agency rule-makings that enact new legal obligations require extensive public comment (in some cases extending for more than 60 days), and in limited cases, even multiple rounds of public comment. Moreover, those rule-makings and enforcement actions are eventually subject to judicial review by a circuit court of appeals. All of these processes ensure that an agency’s actions reflect the will of the people.

Congress can also negate specific agency enforcement actions with a simple majority by invoking the Congressional Review Act. And, of course, agency officials are always subject to ad hoc meeting requests from Congress, which usually occur in response to a national news event. In summary, democratic checks on agency actions are abundant. Unlike court decisions, almost no action an agency takes goes without scrutiny or oversight from Congress, the President, or the public.

Besides aggrandizing and centralizing judicial power, the Supreme Court’s hostile decisions also unduly strain an ever more partisan and gridlocked political process. Often, lawmakers purposefully keep an agency’s legal powers ambiguous as a way to reach a political compromise. The Court’s stringent demand for hyper-specificity per the requirements of the major questions doctrine therefore undermines the democratic legislative process. This in turn creates a flywheel effect whereby the judiciary emerges as the only victor: Less political compromise means the judiciary garners ever more power as it becomes the only institution capable of resolving legal disputes and implementing public policy. Effectively, the Supreme Court is mandating that Congress legislate only in the way it authorizes.

How Lawmakers Can Fight Back

The functional logic of the judiciary undercutting Congress’s ability to legislate while simultaneously incapacitating the institutions created to enforce the rule of law is tantamount to oligarchy. Whether the Court recognizes it or not, markets have rules. Those rules can come from democratically created and supervised public institutions or not. The conservative majority’s actions make it clear what they desire—to centralize their own power. By kneecapping agencies, the courts empower themselves to be the sole administrators of the law. In doing so, they embolden corporations to effectively govern the economy. This is not a new story: Historically, the courts have been a well-recognized ally to corporations by providing the shields businesses desire to block regulations. A recent analysis from the Constitutional Accountability Center found that in the 2020-21 term, the Supreme Court sided with arguments advanced by the U.S. Chamber of Commerce, the largest business lobby in the United States, in 83 percent of cases involving the group.

In what remains of his term, President Biden should make full use of agencies as a tool to effectuate his political agenda. Perhaps one of his Administration’s most significant missed opportunities was to position agency appointments and policy implementation so low on its priority list—but it is not too late for Biden to act. More than ever, agencies should continue to advance sweeping regulatory actions that promote a fairer economy, fight the horrifying effects of climate change, and bolster workers’ rights.

At the same time, Congress must support agencies’ regulatory efforts by enacting much-needed judicial reforms. Fortunately, there are plenty of options available. Congress can pass legislation to prevent agency actions from being reviewed by the federal courts (known as jurisdiction stripping) or codify the Chevron doctrine into law, which would significantly enhance the deference that courts give to agencies when reviewing their actions. Congress can also shift more litigation into agencies’ own legal forums, pack the courts with more favorable judges, and establish judicial term limits. Likely an all-of-the-above approach is needed.

Thankfully, none of these policy options require a constitutional amendment—Congress must merely enact a law. Of course, the political dysfunction plaguing Congress makes it unlikely that these sorts of reforms will be passed in the near future. But progressive lawmakers should push for them anyway. The hostility of the Supreme Court will not abate anytime soon, and voters know the score: The Court’s approval rating has fallen to a historic low of 30 percent among registered voters and just 10 percent among registered Democrats, according to recent polling. These solutions can form the basis of a political agenda that voters will rally around, providing the legislative majorities that Democrats need to enact these—and, indeed, any—much-needed reforms.

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Daniel A. Hanley is a Senior Legal Analyst at the Open Markets Institute. You can follow him on Mastodon or on Twitter @danielahanley.

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