SCOTUS completes the biggest power grab in modern US history
What balance of power?
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As we finally reach the end of another harrowing US Supreme Court term, one overarching theme has emerged: this Court doesn’t believe in the separation of powers.
Three decisions from last week highlight the remarkable success of the right-wing justices in accruing control, drastically shifting power away from the executive and legislative branches.
Think of the separation of powers as having two layers. One is the power of each branch: the legislative branch makes the laws, the executive branch enforces the law, and the judicial branch interprets the law. The other layer is the checks and balances part. Congress passes laws, but that power is checked by the president’s ability to veto them and the judiciary’s ability to invalidate unconstitutional ones. The president’s ability to appoint a cabinet requires the approval of Congress, and the executive branch’s authority to enact regulations and executive actions can be invalidated by the courts.
And then there’s the courts. Where the courts can interpret and invalidate both laws and regulations, there is no similar power to undo a court ruling absent significant friction. In theory, the check from the executive is that the president has the power to nominate judges, and the check from Congress is that it can approve or reject those appointees. You’ll note that neither of those checks allows the legislative or executive branch to easily unwind a specific court decision, but instead only to commit to a long-range course of action of nomination and approval to slowly change the composition of the judiciary.
Another check is that Congress could pass laws that alter the power and composition of the federal courts, such as expanding the courts by creating new courts and increasing the number of judges. Again, however, that’s a long-range plan that requires massive effort and the agreement of the executive branch.
Meanwhile, six unelected right-wing justices, all of whom have a lifetime position, have pulled off what is likely the biggest power grab in American history, knowing full well there’s no way that the other two branches can get it together enough to stop them.
Right-wing justices come through for polluters and fraudsters
Last Friday, the big decision everyone was afraid of, Loper Bright Enterprises v. Raimondo, came out as expected. The court killed off the Chevron doctrine, which had required courts to defer to agency interpretations of unclear statutes.
But Loper Bright didn’t occur in a vacuum. The real-world impact of the Court’s accrual of power to itself can be seen in two other cases that came down last week: Ohio v. EPA and SEC v. Jarkesy.
This Court has made no secret of its willingness to do the bidding of big polluters and has therefore proven remarkably hostile to Environmental Protection Agency regulations, so the decision in Ohio v. EPA was unsurprising. In 2022’s West Virginia v. EPA, the Court gutted a vital portion of the Clean Power Plan, and last year, in Sackett v. EPA, the Court narrowed the scope of the Clean Water Act by determining it knew better than the EPA how to define what wetlands are. As the New York Times pointed out, the Court was so eager to invalidate both these rules that they issued decisions before the regulations even took effect.
Having undermined both the Clean Power Plan and the Clean Water Act, the Court used this term’s Ohio v. EPA to take aim at the Clean Air Act. That law has a provision, the Good Neighbor rule, requiring states to submit plans showing their emissions don’t stop downwind states from meeting federal air-quality standards. If the plan provided by the state is inadequate, the EPA can issue a plan. In 2023, the EPA disapproved of the plans for 21 states and, in their places, issued the Good Neighbor plan, covering 23 states. The plan required upwind states to curb smokestack pollution, among other remediation efforts.
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Several states joined with industrial energy companies and trade associations to bring a lawsuit challenging the rule. Their argument, functionally, was that it would be expensive and challenging to meet the emission standards and that they shouldn’t have to while review of the rule was proceeding through the DC Circuit Court of Appeals. The Court agreed to fast-track the case, and now, this decision blocks the rule from taking effect while being considered by the lower court — a giveaway to polluters, and a permission slip to states that don’t want air quality regulations.
As Justice Amy Coney Barrett put it in her dissenting opinion, the majority granted emergency relief “in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record.” That failure led to the bleakly hilarious specter of Justice Neil Gorsuch, who wrote the majority opinion, confusing nitrogen oxide — the pollutant the EPA was regulating — with nitrous oxide, aka the stuff you get at the dentist. Nonetheless, Gorsuch and his fellow conservatives are convinced they can understand environmental laws and regulations better than the EPA.
The pragmatic effect of the ruling is that it makes national air quality standards difficult to meet, and it puts downwind states at the mercy of upwind states more friendly to polluters. So, the case serves as a one-two punch. First, it protects the energy industry from pesky regulations, and second, it substitutes the on-the-fly judgment of five conservatives who don’t know the difference between air pollutants and laughing gas for the extensive technical expertise of the agency charged with regulating air quality.
Not content to just undermine the EPA’s ability to regulate polluters, the right-wing justices also decided it was necessary to rein in the Security and Exchange Commission’s ability to punish people for securities fraud. In SEC v. Jarkesy, the Court’s six conservatives ruled that the SEC had no authority to impose monetary fines via in-house administrative proceedings and that the Seventh Amendment requires a jury trial.
While this might seem like an arcane matter of procedure, it’s much more. The SEC, along with roughly two dozen other agencies, has typically used administrative law judges (ALJs) for in-house hearings on civil enforcement actions. ALJs are not part of the judicial branch but are instead appointed by the heads of government agencies. They can issue subpoenas and impose fines, and their decisions can be appealed to the federal courts. The use of ALJs streamlines enforcement proceedings, as going to court for a full-fledged jury trial is substantially longer and more expensive.
And that’s precisely the point. It would be impossible for federal agencies to bring lawsuits and undergo jury trials for every instance of enforcement it wants to bring. The decision gums up the works and results, most likely, in agencies simply deciding to forego enforcement actions instead. It threatens the ability of other major agencies, including the Federal Trade Commission, the Internal Revenue Service, the National Labor Relations Board, the Occupational Safety and Health Administration, and the EPA.
As with Ohio v. EPA, the Court’s action here provides multiple kinds of relief. Practically, it makes it much harder for the SEC to prosecute securities fraud, a gift to a financial industry that doesn’t like regulations. Second, where Ohio v. EPA limits the ability of agencies to pass rules, this case limits the ability of agencies to enforce them. The longstanding conservative project of grinding the administrative state to a halt is seeing great success under this Court. Finally, as Justice Sonia Sotomayor called out in her dissent, it “upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government” by finding, for the first time, that Congress cannot pass laws that assign regulatory enforcement outside of the court system.
The victor here, George Jarkesy Jr., is a conservative talk radio host and hedge fund manager who duped investors and had his lawsuit bankrolled by people like Elon Musk, an individual with his own long-standing problems with the SEC. He’s a perfect avatar for right-wingers who don’t believe rules should apply to them and a fitting vehicle with which to incapacitate the federal government.
The triumph of judicial hubris
Which brings us, finally, to Loper Bright.
In some ways, nothing about the actual facts of Loper Bright matters, because this Court was always going to find a vehicle to destroy Chevron deference. In 1984, the Court decided Chevron v. National Resources Defense Counsel and held that federal courts must defer to an agency’s interpretation of a statute as long as that interpretation was a permissible construction of the statute. Loper Bright, a case ostensibly about the government’s power to require fisheries to pay for federal observers, was actually about conservative anti-regulation advocates finally getting the proper case for the highest Court to toss Chevron.
The issue of statutory interpretation by agencies arises because Congress can’t possibly anticipate everything that will fall under a law, nor are members of Congress experts in everything their laws touch. Agency experts, however, have a background in a single area and can provide specific expertise on how to interpret or apply a statute. Getting rid of agency deference, combined with the impossibility that Congress, even if not hopelessly hamstrung by a nihilist GOP, could not possibly pass laws to cover every possible topic, means that the authority to interpret statutes shifts squarely to only one branch: the judicial.
Court-watchers expected the result here, but no one could have predicted how roundly arrogant Chief Justice John Roberts’s majority opinion would be. Declaring flatly that ”delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise,” Roberts makes clear that he sees no value in the expertise of agencies. Rather, only the federal courts can interpret what Congress intended, even though judges are generalists in the law, not experts in the scientific or technical work of government agencies.
There’s no one better than Justice Elena Kagan to call this out for what it is: “A rule of judicial humility gives way to a rule of judicial hubris.” Kagan’s dissent goes on to note that the Court has usurped the decision-making authority Congress assigned to agencies, and “in one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law.” The federal courts are neither intellectually nor infrastructurally equipped to be regulator czars for the country. However, the federal courts are well-stuffed with Trump appointees who will be happy to wield such power.
Taken together, this trio of cases shows how the Court has boxed out the other branches, ruling in a fashion that steadily erodes their authority. Unless Congress gets serious about court reform, American democracy will remain hopelessly unbalanced, tilted toward the branch with the least accountability and the most unchecked power.
That’s it for today
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Thanks for reading.
Sing along with Gorsuch: “Don’t know much about chemistry, don’t know much biology. Don’t know much about science books, don’t know much about the rights we took. But I do know I love my job, and the traitors in the MAGA mob. What a wonderful world it will be!”
I'm still studying the roles of the three branches of the US Gov't. I keep coming back to wondering why the Executive Branch can't just refuse to enforce SCOTUS judgments or Congress not fund their decisions. FGS, the right wing cheats at every opportunity, can't the remaining two branches fight back in a manner that still remains constitutional?!?