Republicans Are to Easy on Other Courts
Guest Essay
Republicans May Have Set Themselves Up for a Showdown With the Supreme Court
Mr. Millman has written extensively about politics, policy and culture, and writes the newsletter Gideon's Substack.
Last week's Supreme Court decision in West Virginia v. Environmental Protection Agency limiting the E.P.A.'s ability to regulate a shift to a less carbon-intensive economy should have surprised no one familiar with conservative complaints about the administrative state. The alphabet soup of federal executive branch agencies — from the F.D.A. to the S.E.C. — that regulate much of American economic life have long been the targets of Republican criticism.
If Republicans retake Congress in 2022 and the presidency in 2024, the country may see an even more dramatic showdown over the administrative state. But that showdown might well pit Republicans against themselves.
There are actually two Republican critiques of the administrative state — and they are fundamentally in contradiction with each other. One seeks to restrain its power, the other to wield it against new targets.
The former has advanced for decades through the courts. Its roots lie in what is known legally as the non-delegation doctrine, a largely Depression-era theory that sought to deny or curtail Congress's power to delegate its authority to administrative agencies. Its more recent incarnation has sought to limit the discretion of administrative agencies even when that discretion has been delegated to them by Congress.
The second critique comes from the populist right. It aims not to check powerful executive branch bureaucracies but to wrestle control of them away from liberal technocrats and put them to work for "the people" as they understand it, unhampered by interference from the courts.
The judicial critique is more familiar, but the courts have grown bolder of late in demanding that new rule-making follow explicit legislative mandates. For example, in April a federal judge struck down the C.D.C.'s extension of the mask mandate for airlines by narrowly reading the agency's authority to regulate personal behavior. And in May, in Jarkesy v. S.E.C., the U.S. Court of Appeals for the Fifth Circuit rebuked the S.E.C. for deciding a question of fraud before an administrative law judge rather than before a jury, even though it was operating under a broad grant of authority under the Dodd-Frank law.
West Virginia v. Environmental Protection Agency is the latest case in this sequence. It didn't give conservative critics everything they wanted, but it ruled that even if the text of a statute granted broad authority to an agency, the court would read that grant narrowly and stop the agency from making rules on "major questions" without explicit instruction from Congress.
Democrats tend to view this crusade as a backdoor effort to deregulate the economy. But in practice, obstructing the regulatory process may come with potentially perverse results. The E.P.A., for example, retains the authority to regulate coal-fired power plants — indeed, it could take a far more severe stance than the Obama administration took. It just can't facilitate a smoother transition to a cleaner energy mix without explicit instruction from Congress.
Even as this judicial project has advanced, though, a growing part of the Republican Party has been moving away from free market ideology — and embracing the idea of turning the administrative state to its own purposes.
John Marini, the Claremont Institute's vigorous critic of the administrative state, has called it not merely unconstitutional but anti-constitutional. His preferred solution may be inferred from the fact that he saw the real tragedy of Watergate as having prevented President Richard Nixon from bringing a (reduced) administrative state more fully under his personal control. Adrian Vermeule, a Harvard professor and prominent Catholic integralist, has made common cause with some liberals to argue that the administrative state can be "redeemed" by infusing it with the proper moral spirit. In 2017, Steve Bannon declared that to "deconstruct[ … ] the administrative state" was a top priority for a new populist movement. And in April, J.D. Vance, the Ohio Republican candidate for the Senate, said that in a prospective second Trump administration, the president should "fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people."
This critique is as much cultural as political or economic. It argues that precisely because it is staffed with technocratic professionals, the administrative state derives its legitimacy from the credentials of that class and a pretension to rational analysis. The bureaucracy's own interests and the ideological orientation of its staff will increasingly bring it into conflict with the people whose lives and livelihoods it regulates. Meanwhile, the administrative state will tend to view democratic accountability itself as an intrusion on its own prerogatives.
To solve this problem, as these critics see it, it isn't enough to clip the administrative state's wings or even to overthrow it, because the same phenomenon is manifested in large corporations, the media, academia — any large institution that values educational credentials. So populists like Mr. Bannon and Mr. Vance seek to restaff the administrative state with politically friendly people who can be relied on to turn its regulatory powers on those same organizations. It's a culture-war twist on the progressive goal of using centralized government power to check concentrated private interests.
Populist governments in Hungary and Poland have transformed their respective governments in just this manner, transformations that have been denounced as corrupt because they are indistinguishable from corruption. But Hungary and Poland have also transformed their judiciaries to bring them into line with regime goals.
By contrast, a move by a second Trump administration (or a DeSantis administration) to seize and transform the American administrative state could put it on a collision course with a conservative judiciary. After all, if an executive branch agency exceeds its power when it makes rules under a broad grant of power from Congress, surely it exceeds them when it ignores explicit instructions from Congress, which a wholesale politicization of the administrative state would certainly do.
This is where the two visions from the right could come into sharp conflict. Would a conservative Supreme Court rebuke a conservative administration if it acts outside the bounds of what the court sees as legitimate? It's not clear.
On the one hand, the Roberts court has sometimes taken the view that the best way to make the administrative state politically accountable is to treat it as part of the "unitary" executive. On the other hand, the same court rebuked the Trump administration repeatedly for failing to follow administrative law procedures, notably on immigration. It's hard to imagine it would look kindly on a wholesale dismissal of those procedures, much less the unilateral jettisoning of the Civil Service Reform Act (which sets out rules for the management of the federal bureaucracy).
That's why Mr. Vance, in calling for Mr. Trump to do just that, went on to say: "And when the courts stop you, stand before the country, and say: The chief justice has made his ruling. Now let him enforce it."
If we take these critiques seriously, one thing really stands out. Absent from this projected clash between the executive and judiciary is the branch that represents the people and is empowered to make laws in their name: Congress. With decisions like West Virginia v. E.P.A., the least-accountable branch — the judiciary — has appointed itself the defender of Congress's powers against encroachment by the executive, when Congress is perfectly capable of defending them itself.
That's an odd way to defend democracy. But the populist critique is even stranger when you consider that an aspiring legislator like Mr. Vance is basically calling for the executive to ignore Congress's laws. Ambitious politicians don't generally run to weaken the offices they seek to claim, nor do advocates of small-r republicanism yearn for a new Caesar.
So if conservatives are serious about fidelity to the Constitution and about wanting to cure the administrative state's democratic deficit, Congress is where they should focus their attention.
For Congress to take more responsibility, however, it would first have to defend its own prerogatives even against presidents of the same party and invest in its own policymaking apparatus. Most fundamentally, it would have to be willing to shape public opinion by making policy rather than passing the buck to the administrative state, to lead rather than to demagogue.
If that's difficult to imagine the Republican Party supporting, then perhaps their critiques really are mere expressions of the will to power. Or perhaps conservatives themselves see the Constitution that they claim to venerate as no longer well designed for the country that actually exists.
In that case, they've effectively given a backhanded compliment to the progressives who invented the modern administrative state. They may not have designed an eternally perfect political mechanism any more than the founders did. But in calling for new government structures that respond to new conditions, they may have had a point after all.
Noah Millman (@BloggerGideon) writes the newsletter Gideon's Substack and is the film and theater critic at Modern Age.
Source: https://www.nytimes.com/2022/07/06/opinion/republicans-supreme-court-administrative-state.html
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