Recently, the Supreme Court agreed to hear Dobbs v. Jackson Women's Health Organization, a potentially landmark abortion case with the petitioners asking the Court to revisit Roe v. Wade. Before oral arguments in that case could even be scheduled, the Court rejected to stay a Texas law banning abortions after six weeks.
As a result, the Court’s conservative justices find themselves in damage control mode, with a number of justices taking the time to once more assure the public that the Supreme Court makes only legal decisions and never determines policy based on its merits. Both Justice Alito and Justice Barrett recently gave speeches defending the Court’s recent decisions declining to stay the Texas abortion law against allegations of political motivation. Without a doubt, the Court moved to the right as Justice Barrett replaced liberal Justice Ruth Bader-Ginsburg. While public attention on the Court remains focused on social issues like abortion, the rightward shift will result in dramatic changes to the regulatory state.
The conservative justices champion a formerly defunct legal theory from the Court’s laissez-faire Lochner-era known as “nondelegation doctrine.” Drawn from a chapter of John Locke’s Second Treatise of Government, nondelegation doctrine holds that, once delegated to Congress from the people, Congress cannot delegate any legislative powers beyond Congress.
In the Lochner era case of Schechter Poultry Corp. v. United States, nondelegation doctrine was used to prohibit New Deal legislation from delegating the power to make binding regulations to industry groups. As the Court moved to support New Deal legislation, conservative justices rejected the logic of nondelegation doctrine and supported efforts to delegate regulatory power to administrative agencies.
Today, the logic of modern jurisprudence on nondelegation comes from the case of Chevron v. NRDC. In this case, the Court unanimously upheld pollutant regulations pursuant to the Clean Air Act, explaining that, as a general rule, judges and justices should not substitute their own reasoning for that of regulatory agencies. This rule, known as “Chevron deference”, is now in the line of fire from conservative justices.
In the 2019 case of Gundy v. United States, the Court upheld legislation delegating the regulation of federal sex offenders to the office of the Attorney General. The case split the Court 5-3 following Justice Kennedy’s retirement, with Justice Alito joining the Court’s liberals to uphold the legislation despite writing a concurring opinion suggesting the Court should revisit nondelegation doctrine.
Justice Gorsuch, however, authored his first major dissent in Gundy, arguing that the Court should subvert the common practice of legislation delegating rule-making power to the executive agencies. Gorsuch described the modern regulatory state as a “vortex of authority.” After joining the Court, Justice Kavanaugh used a concurring opinion in an unrelated case to signal his agreement with Gorcush’s dissent in Gundy.
Briefly, Justice Gorsuch and the Court’s conservatives seek to remake the regulatory state and upend how legislation interacts with American citizens. By rejecting Chevron deference, the Court itself will create a vortex of authority, whereby the Court’s justices will substitute their own judgement for that of regulatory specialists. Conservative justices aim to seize a veto power over any regulation enacted by administrative agencies. Despite decrying the cause of judicial activism for years, the conservative judicial movement is poised to secure a major victory by directly eschewing judicial restraint.
This term, the Supreme Court will hear American Hospital Association v. Becerra, a complicated case governing a 2017 regulatory change to Medicare reimbursement rates for prescription drugs. After the Court agreed to hear the case, conservative and corporate interest groups wrote dozens of amicus curiae briefs asking the Court to use this case to reject Chevron deference and assert judicial supremacy over the regulatory state.
As a result, policymakers must be aware that, in the near future, the Court’s 6-3 conservative majority will exercise the power to veto any and all federal regulations. Activists should push for legislation to include workarounds from judicial rulings. Pending legislation on politically fraught issues, such as climate change and healthcare, should include regulatory language in the legislation, rather than vesting that power to the regulatory agencies. Additionally, policymakers should push to codify potential fraught regulation, such as pollution limits, into any legislation itself, rather than EPA regulation. While regulation ideally should be flexible and dynamic to respond to new and existing threats to human well-being, the reality of the modern Supreme Court requires rethinking the role of the regulatory agencies in federal policy.
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