It’s June, which means the Supreme Court is in the final stretch of its first term since Justice Anthony Kennedy gave his seat up for President Trump to fill. We will soon know what America looks like under a judiciary that’s been remade by a president that is actively lobbying the Supreme Court to permit racist voter suppression.
Indeed, the story of this term is likely to be a story about democracy — and the Supreme Court’s role in thwarting it. The court is likely to hold that federal judges are powerless to stop partisan gerrymandering (although, oddly enough, Trump judge Brett Kavanaugh appeared open to some of the arguments against gerrymandering during oral arguments). And it is even more likely to hold that the Trump administration may effectively rig the Census to discourage immigrants from participating and shift power to white communities.
Below the surface, however, are two far more subtle attacks on democracy. These two cases, Kisor v. Wilkie and Gundy v. United States, are early stages of a much broader effort to transfer power from the executive branch — whose leader is elected, at least most of the time — to a judiciary that is unaccountable to voters and that is now controlled by the Republican Party. It is unclear whether the Supreme Court’s right flank has the votes it needs to prevail in both cases, but both are bellwethers for an agenda that could leave the next Democratic president powerless to govern.
The war on democracy
This agenda has two prongs. The first seeks to make congressional elections as undemocratic as possible. Gerrymandering helps lock Republicans into power in the House of Representatives. And when a Democratic wave election overcomes those gerrymanders, as it did in 2018, Senate malapportionment effectively gives Republicans so many free seats in the Senate that Democrats need a crushing electoral victory to gain control of Congress’ upper house.
Barring a political realignment that allows Democrats to compete in underpopulated states like Wyoming — or massive constitutional reform that abolishes both gerrymandering and Senate malapportionment — Republicans will control at least one house of Congress nearly all of the time. They will do so even after many elections where a majority of the American people vote for Democrats. And that means that Democratic presidents will not be able to push a legislative agenda.
Legislation is not the entire ballgame, however. Which brings us to the second prong of this effort to render Democratic presidents powerless.
Even if Democrats can never enact another Act of Congress ever again, existing laws still give the president significant power to shape policy. That’s because many federal laws lay out a broad policy objective, but then give one or more federal agencies the power to implement that policy through regulations.
The Clean Air Act, for example, tells the Environmental Protection Agency to require certain power plants to use the cleanest technology that is available to them, taking into account economic constraints. Thus, as green technology improves, the EPA should write new regulations that require power plants to use that technology.
Similarly, a provision of the Affordable Care Act prohibits health providers from engaging in various forms of discrimination. It also gives the Secretary of Health and Human Services the power to promulgate regulations implementing these anti-discrimination protections.
As a practical matter, this power to write regulations gives executive branch agencies a great deal of discretion over matters of policy. The Obama administration read the provisions of the Clean Air Act described above to push an aggressive plan to fight climate change — which Republicans on the Supreme Court blocked and the Trump administration plans to dismantle. The Obama administration read the Affordable Care Act to forbid discrimination against transgender patients, and the Trump administration plans to strip these protections from trans people.
Federal laws are often ambiguous, and when those laws are ambiguous, the Supreme Court’s decision in Chevron v. Natural Resources Defense Council typically requires courts to defer to the agency’s reading of the statute. As Justice John Paul Stevens explained in Chevron, this decision helps protect democracy. “While agencies are not directly accountable to the people,” Stevens explained, “the Chief Executive is.” Thus, “it is entirely appropriate for this political branch of the Government” to set policy, rather than leaving such questions to unelected judges.
Chevron and similar cases are, to say the least, not beloved by Republican legal elites — or, at least, they’ve fallen into disfavor now that Republicans dominate the federal bench. Starting in the Obama administration, annual meetings of the conservative Federalist Society, the group Trump relies upon to select his judicial nominees, became extended grievance sessions against federal agencies, punctuated by various proposals to transfer those agencies’ power to the judiciary.
After all, if the executive branch can’t regulate — or, at least, if it can’t regulate without getting permission from a Republican judiciary — then conservatives no longer need to worry about Democratic presidents doing much of anything that doesn’t meet the GOP’s approval.
And that brings us back to Kisor and Gundy.
The first cut
Kisor and Gundy both involve agency’s regulatory power. The Supreme Court’s Republican majority is likely to use the first case to make an incremental step against agency power, while the later case could end in a revolution — if the court’s hardliners have the votes to do so.
Kisor asks the court to overrule a doctrine known as “Auer Deference,” so named for Justice Antonin Scalia’s unanimous opinion in Auer v. Robbins. Just as Chevron held that courts should defer to an agency’s reasonable interpretation of an ambiguous regulation, Auer held that, when a regulation is itself ambiguous, courts should also defer to the agency’s reading of that regulation so long as it is reasonable.
At the oral argument in Kisor, Justice Stephen Breyer warned that a decision overruling Auer would be the “greatest judicial power grab since Marbury v. Madison,” a reference to the 1803 Supreme Court decision holding that federal courts may declare laws unconstitutional. That’s probably an exaggeration.
While the doctrine announced in Auer has long roots — Justice Sonia Sotomayor traced it back to an 1850 decision — agencies would still be able to rewrite their own regulations in a post-Auer world. They would have to do so in an arduous process that sometimes takes years. But a decision overruling Auer, in and of itself, would not strip away the next Democratic president’s ability to govern.
It would, however, be a harbinger of future incursions on the elected branches. Auer, after all, was a unanimous decision. It wasn’t so long ago that decisions like Chevron and Auer were neither especially partisan nor nearly as controversial as they are today. Indeed, when Chevron was handed down in 1984, it was widely viewed as a boon to conservatives because it made it easier for the Reagan administration to deregulate.
Now that Republicans view the Supreme Court as their biggest ally, however, Auer is likely doomed. Though there was some uncertainty at oral argument about whether there are five votes to overrule it explicitly, there are likely five votes to gut Auer.
The more important question what else this Supreme Court will do after it nukes Auer.
Justice Thomas’ fever dream
Gundy offers the court the most extreme possible option. It involves a mostly defunct doctrine known as “nondelegation,” which a conservative Supreme Court briefly used to strike down early New Deal programs before the doctrine was for all practical purposes abandoned.
Recall that many federal laws lay out a broad policy, and then delegate the task of implementing the details of that policy to regulatory agencies. Eighty-four years ago, in A. L. A. Schechter Poultry Corp. v. United States, the Supreme Court struck down a law that gave President Roosevelt sweeping power to impose “codes of fair competition” on industries. The power delegated to Roosevelt was so broad that, at least according to the Supreme Court, the president’s discretion to regulate industry was “virtually unfettered.” The nondelegation doctrine says that such a near-limitless delegation of lawmaking power is not allowed.
Since then, however, the court’s clarified that the nondelegation principle applies only in egregious cases. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform,’” the court held in Mistretta v. United States, “‘such legislative action is not a forbidden delegation of legislative power.’”
Gundy may be the first case in three generations to run afoul of this rule. It involves a federal law that requires certain sex offenders convicted after 2006 to register “in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” Another provision of this same law gives the attorney general “the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders.”
Thus, while the fate of people who committed sex offenses after 2006 is defined by statute, the fate of people who offended earlier is left up to the attorney general. Moreover, though there are good arguments suggesting that other provisions of the law may provide the attorney general with some guidance about how to treat pre-2006 offenders, the Justice Department took a blunderbuss approach — issuing a sweeping regulation requiring all sex offenders that fall within the statute to register, regardless of the date of their conviction.
The court’s right flank likely would love to use Gundy as a vehicle to burn down the administrative state. Justice Clarence Thomas has written that “generally applicable rules of private conduct” can only be created by an act of Congress and that any decision that “involves an exercise of policy discretion. . . requires an exercise of legislative power.” So Thomas would largely strip away agencies’ power to regulate altogether.
As a lower court judge, moreover, Neil Gorusch wrote at least one opinion suggesting that he’s sympathetic to Thomas’ view.
That said, there are several reasons to doubt that Thomas and Gorsuch will find five votes for their extreme views. For one thing, Gundy was argued four days before Kavanaugh joined the Supreme Court, so Republicans are down a vote in this case and, under the court’s ordinary procedures, would need to schedule a second oral argument if they want Kavanaugh to weigh in on Gundy.
There are also plenty of ways to write an opinion in Gundy that strikes down this unusually broad delegation of authority to the attorney general, but otherwise leaves the regulatory system untouched. Such a decision would not be an especially big deal — though conservatives eager to dismantle federal agencies would undoubtedly celebrate such a decision as a watershed.
Additionally, the Supreme Court typically tries to spread work evenly among its nine members, so it is often possible to predict who is writing a particular decision by looking and who else already released an opinion from the same monthly sitting. Here is SCOTUSBlog’s grid of which opinions have already been handed down this term. Gundy was argued in October. Notice who has not yet written anything from the October sitting.
The Obama-appointed Justice Sotomayor, to say the least, is not likely to join a Gorsuchian crusade to burn down the EPA and dance on its ashes.
Kisor and Gundy, in other words, represent the alpha and the omega of a conservative crusade to dismantle the administrative state — and to strip all future Democratic presidents of their power to govern in the process. Kisor represents a relatively minor incursion on agency regulation, but it is an incursion that is very likely to succeed. Gundy could hand conservatives a sweeping, crushing victory, but there probably aren’t five votes for that outcome.
The question is where the court is likely to fall between the two extremes. And the answer is likely to be that it is ready to seize a great deal of power from the executive branch.
Four years ago, in King v. Burwell, Chief Justice John Roberts handed down an opinion significantly cutting back Chevron — holding that questions of “deep ‘economic and political significance'” that are central to a “statutory scheme” should not be left up to agencies to decide unless Congress does so quite explicitly. As a lower court judge, Kavanaugh suggested in an oral argument that he was quite eager to use King to dismantle President Obama’s single most ambitious effort to fight climate change.
More recently, in one of his final opinions on the Supreme Court, Justice Kennedy wrote that “it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.” Kennedy is more moderate than any of the five Republicans that now sit on his former court.
The future, in other words, is likely to be one where the judiciary owes little or no deference to agencies, and where every regulation must win the approval of Republicans in black robes. In that world, Republican administrations are likely to be able to regulate (or deregulate) freely, while Democratic administrations will have to seek a Republican Supreme Court’s permission every time it wants to make meaningful policy changes.
The future of democracy in the United States is grim. And we will soon have a good sign of just how grim that future will be when the Supreme Court finishes up its current term this month.