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HomeU.SWeakening Regulatory Agencies Will Be a Key Legacy of the Roberts Court

Weakening Regulatory Agencies Will Be a Key Legacy of the Roberts Court


Twice in two days, the Supreme Court’s conservative supermajority has issued sweeping rulings that cut against established precedents and will hamstring the ability of regulatory agencies to impose rules on powerful business interests.

On Friday, the six Republican-appointed justices overturned a 40-year-old foundational part of American law, the Chevron doctrine, which will make it easier to successfully challenge regulations in court by eliminating a requirement that courts defer to the expertise of federal agencies in interpreting their laws.

The day before, the justices had struck down a key practice used by many agencies to enforce rules via in-house tribunals, rather than suing accused malefactors in federal court before juries.

Each decision turned on a different rationale, but both pointed in the same direction: eroding the power of the federal regulatory bureaucracy. And the pair of decisions are only the most recent notes to sound that theme, making clear that the current majority’s pursuit of a deregulatory agenda will be part of its legacy.

All six Republican appointees on the court came of age amid the conservative legal movement. Curbing the so-called administrative state has long been a central goal of the libertarian faction of that movement — and the wealthy donors who have funded its rise over the past half century.

The fight traces back to the Great Depression and the New Deal era in the 1930s, when economic disaster had reduced the political power of wealthy business interests. Against that backdrop, President Franklin D. Roosevelt and his allies in Congress created the modern administrative state.

The goal was to find a new way to impose some order on an economy that had grown increasingly complex during the Industrial Revolution, banking crises and the emergence of mass telecommunications and broadcast technologies. Instead of trying to manage at a granular level, lawmakers passed broad laws to govern different sectors and set up agencies of technical experts to draft and enforce specific regulations.

This governing structure has become the way that American society imposes rules on powerful business interests across a range of issues, such as ensuring that the air and water are clean, that food, drugs, vehicles and consumer products are safe, and that financial firms do not defraud people.

Regardless of their value to society as a whole, such rules can also cut into the profits of business owners. From the start, many wealthy interests have denounced the administrative state as socialism.

And while Eisenhower-era Republicans acquiesced to the new agencies in the 1950s, by the end of the next decade, conservative critics increasingly insisted that the system of free enterprise was being stifled by unaccountable government bureaucrats.

A once-secret 1971 memo for the U.S. Chamber of Commerce by a lawyer who had represented the tobacco industry crystallized that view: It proposed a plan to transform public opinion and build political influence to roll back the administrative state. (The lawyer behind it, Lewis F. Powell Jr., would soon be appointed to the Supreme Court by President Richard M. Nixon.)

That long-game push has had many facets, including funding think tanks like the American Enterprise Institute and the Heritage Foundation. It was also an ideological tenet of the conservative legal movement that took root in the 1970s, one that circulated through the influential network that developed the next decade to advance that movement, the Federalist Society.

The movement first came to power with the Reagan administration and has shaped ambitious Republican lawyers ever since. Young conservative lawyers who came of age working for Reagan included Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. Notably, Reagan also put the mother of Justice Neil M. Gorsuch in charge of the Environmental Protection Agency, where she pursued a controversially deregulatory agenda.

Years later, after President Donald J. Trump essentially made a deal with the conservative legal movement to let it guide his court appointments, his White House counsel, a longtime stalwart of the Federalist Society, Donald F. McGahn II, made hostility to the administrative state a litmus test.

As he seeks a return to power, Mr. Trump has courted business interests behind closed doors by promising tax cuts and deregulation, including asking oil industry executives to fund his campaign and promising to roll back environmental regulations. He and his advisers have vowed to dismantle the administrative state, including bringing independent regulatory agencies under direct White House control and making it easier to fire tens of thousands of career civil servants and replace them with people loyal to his agenda.

But regardless of whether Mr. Trump is re-elected, he has already undercut this government structure. His three appointments to the Supreme Court virtually ensured it will be dominated by Republican appointees for many years, even though Democrats have won the popular vote in seven of the last eight presidential elections.

That the majority has aggressively wielded its power to achieve conservative culture war victories — notably, eliminating a constitutional right to an abortion in 2022, which fulfilled another longtime goal of the conservative legal movement. But while less vivid to the general public, its unfolding assault on the administrative state may be as consequential.

In recent years, the Republican majority has also made it easier to sue agencies and get their rules overturned, including by advancing the so-called major questions doctrine. Under that idea, courts should nullify economically significant regulations if judges decided Congress was not clear enough in authorizing them.

Advancing and entrenching that idea, the court has, for example, struck down an E.P.A. rule aimed at limiting carbon pollution from power plants, and barred the Occupational Safety and Health Administration from telling large employers they must either have their workers vaccinated against Covid-19 or have them undergo frequent testing.

And in a 2020 ruling, the five Republican appointees then on the court rejected a provision of the law Congress enacted to create the Consumer Financial Protection Bureau. Under the law, its chief was shielded from being arbitrarily fired by a president without a good cause, like misconduct.

To be sure, the court has not always gone as far as libertarians wanted. This term, the justices rejected a challenge to the way the Consumer Financial Protection Bureau is funded. Striking it down would have opened the door to lawsuits to nullify every regulation and enforcement action it has taken in its 13 years of existence, including ones concerning mortgages, credit cards, consumer loans and banking.

But while overturning Chevron is for now the capstone victory for the conservative legal movement’s assault on the administrative state, it may not be the endpoint. More extreme opponents of regulation hope the court will go a step further, declaring a sweeping interpretation of the so-called nondelegation doctrine to be the law of the land.

Under that theory of the Constitution, Congress should not be allowed to delegate any of its lawmaking authority to technocratic experts at executive branch agencies to come up with legally binding rules. If that notion were to be embraced by a majority of the court, the entire government structure of regulatory agencies — and the rules they have developed over the decades — could fall.


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