Biden may have no choice about expanding the Supreme Court, as conservatives prepare a power grab
When Congress passed the Affordable Care Act (ACA), the final bill was 974 pages long. That does put it on the longer side of congressional bills, but it was definitely not the longest. The Energy Policy Act passed under George W. Bush was longer. The No Child Left Behind Act that set up a series of tests designed to topple public education was much longer. But since those were Republican-authored bills, there was a lack of drama involving people thumping piles of paper on a desk and complaining about all those pages, all those words.
In the case of the ACA, as with almost all legislation, the bill that passed the Congress was just the start. Four years after the passage of the legislation, around 20,000 pages of regulations had been authored to put into practical terms what the text of the bill means when it comes down to providing specific coverage in particular situations. Despite the length of the original bill, without the ability of executive agencies to author regulations, it would be impossible to actually deploy the authority which is only outlined in the legislation itself.
But the conservative majority on the Supreme Court has made it explicitly clear that it wants to make it impossible. Even if the fight over the ACA ends with every remaining piece of the legislation intact, it may not matter. Because the Court is just looking for an opportunity to make every regulation obsolete.
The key lies in something called the nondelegation doctrine. Under this theory, Article I of the Constitution gives Congress the right to exercise all legislative powers, but it doesn’t give it the authority to delegate any of that power to any other branch. So, for example, Congress could pass a law saying “greenhouses gas emissions have to be kept at the level of 1980,” but it could not leave it to the EPA to determine what emissions are covered by the phrase “greenhouse gases” or anything about how levels should be maintained. Congress would have to define all the gases, all the levels, all the methods of reduction, all the means of testing, all the … everything. Right in the bill.
This theory of how the government should operate would have even broader consequences on agencies like the FDA, which has broad and general powers to determine whether or not a drug is effective, or a food product is safe. Under nondelegation doctrine, every one of these situations could require specific legislation.
If that sounds like a situation in which regulation becomes essentially impossible, and bad actors of all types can manufacture loopholes infinitely faster than government can provide a response … that’s exactly right. This is why the Supreme Court has rarely dipped its toes anywhere near these waters since the 1930s, when a similarly radical conservative court used its power to push back on programs supported by Franklin Roosevelt. The last time the doctrine was deployed by the Court was in 1935. Since then, innumerable rulings have directly refuted this idea for reasons that include the simple fact that without administrative agencies, governance of a modern state is impossible.
But as Slate reports, the current 6-3 conservative court hasn’t just hinted that it wants to revive this long-abandoned and intrinsically impractical doctrine, it has said so openly. A five-justice majority has already signed on to the idea of reviving a judicial approach that has been dead for over 80 years.
In 2019, four conservative members joined a dissent authored by Neil Gorsuch, who wrote that “the court should revive the dormant nondelegation doctrine.” Samuel Alito authored a separate opinion that also praised the nondelegation doctrine, and wished for an opportunity to make that clear in a case that was not about expanding prosecution of sex offenders. Since then both Brett Kavanaugh and Amy Coney Barrett have joined the nondelegation chorus.
What case could trigger a flip which would turn the Biden administration from an opportunity to move the nation forward, into a mad scramble to prevent a tumble into the abyss? Try almost any. A challenge to any regulation, by any agency, might give the back-to-the-1930s crowd an opportunity to sign their names on a decision that guts everything from Fair Housing to the Clean Air Act in one go. If it was difficult to pass the ACA at 974 pages, imagine the difficulty, the compromises, and the failings that would occur if the legislation itself had to clock in at 21,000 pages in an effort to do the job of regulatory agencies. And even then, the results might last a day before insurance agencies and healthcare providers took advantage of a nuance of language to simply leave the legislation behind. By fixing regulations in the language of the original legislation, rather than allowing agencies to adapt them to changing conditions, many would be made moot or impractical.
Justice Elena Kagan made it clear in that 2019 decision that using the nondelegation doctrine would, at a single blow, make “most of Government is unconstitutional.” Even though the justices who used the theory against Roosevelt recognized that agencies might be allowed to “fill in the details” of legislation, Kavanaugh has made it clear that, so far as he is concerned, those details can’t extend to “major policy questions.” Which is, of course, a difference without definition.
Should the court revive nondelegation as a legitimate cause for overturning regulations, every regulation would be challengeable on that basis. Every change, and every existing rule, would be subject to fresh court review. And every new piece of legislation would become … impossible.
Rediscovering nondelegation in 2021 is not just a ridiculous effort to hobble any progress by the the Biden administration, and not just an open challenge to the possibility of a modern state. It’s also a huge power grab by the court itself. It creates a whole new category of court review in which some regulations would be permissible, and others unconstitutional, based on whether the Court believes they step over a line that cannot be defined.
If the current conservative Supreme Court members want to all but guarantee that they will soon find themselves the minority on a significantly expanded Court … they know which button to push.