The Roberts Court’s Backdoor Attack on Governing Capacity

This week we have a guest author: K. Sabeel Rahman is a professor of law at Cornell Law School and member of the Roosevelt Institute board. He previously led the Office of Information and Regulatory Affairs in the Biden-Harris administration, and you can read more from him on X @ksabeelrahman.

Earlier this summer, the Supreme Court capped off another enormously consequential term with a barrage of decisions that could dramatically remake our federal governing institutions by hamstringing their ability to do some of their most important functions. 

In Loper Bright v. Raimondo, the Court overturned a decades-long policy of judicial deference to agencies’ interpretations of congressional statutes, commonly called “Chevron deference.” While traditionally agencies have had latitude to use their expertise in the fields they govern to fill in gaps and adapt congressional mandates based on public needs, this new ruling significantly narrows that flexibility—and puts courts, rather than agencies, in the driver’s seat of making public policy. In Ohio v. EPA, the Court invalidated a rule on the grounds that the agency did not sufficiently consider counterarguments raised in public comments, despite the agency’s thorough consideration, prompting harsh criticism from even Trump’s most recent SCOTUS appointee, Justice Amy Coney Barrett. In SEC v. Jarkesy, the Court curtailed agencies’ enforcement powers, limiting the use of civil penalties—a somewhat technical ruling that nevertheless could have a long reach by opening the door to more attacks on agency enforcement powers, and causing agencies to avoid imposing fines or penalties. And in Corner Post v. Federal Reserve, the Court shifted the previous time limit on when regulations can be challenged. As a result, even regulations that have long been in place can be newly litigated by recently injured plaintiffs. Among other things, this creates a pathway for opportunistic litigants to more aggressively undo older regulations, and to expand the reach of this term’s other decisions to rules that had been previously upheld.

The Roberts Court has already been rightly castigated by advocates, scholars, and elected officials for its sustained efforts to undermine democracy, from the latest decision to immunize presidents from legal accountability to previous decisions undermining the Voting Rights Act and other essential protections for free and fair elections. Questions about administrative law and the reach of agency authority are overlooked by most as technical or dry, and are caricatured by the Right as battles over the accountability of “the deep state.” But the reality is that these decisions are hugely consequential, and—combined with the Court’s invention of the “major questions doctrine” to neutralize big-ticket regulatory policies from pandemic worker protections to student debt cancellation—they represent a subtle and troubling new form of democracy nullification. Rather than constraining the ability of communities to be heard in the electoral and legislative process, these decisions attack what happens after: thwarting the ability of federal agencies to implement the policy directives set out by democratically elected legislatures and presidents. 

The Court has stacked the deck against progressive governance.

Taken together, these decisions make the future pathway for agency rulemaking and enforcement considerably more fraught. As Steve Vladeck has argued, these latest rulings are engineered not to eliminate agency policymaking authorities, but to fundamentally destabilize them. Any given rule or policy might survive the gauntlet of skeptical judicial review, but so too might any given policy be tossed out—even if there are seemingly clear statutory authorities or robust evidence for the policy. The Court’s decisions thus significantly advance the long-term conservative effort to dismantle the basic functions of the modern executive branch. 

But, crucially, this judicial commitment to executive restraint is itself not neutral or consistent. As a doctrinal matter, the courts—and the Roberts Court in particular—have tended to be overly solicitous and deferential to other forms of executive authority, particularly when it comes to immigration, surveillance, national security, and the carceral apparatus more broadly (not to mention the immunization of the president from criminal liability). The skepticism of agency authority bites hardest, often, on regulations that tackle climate change, rein in corporate malfeasance, protect workers, and secure civil rights. The attack on administrative authority, then, has a specific substantive valence. It is a backdoor way of neutralizing specifically those institutions most tasked with remedying structural inequities in our society and economy. These latest decisions will essentially magnify the power and influence of big business and the most resourced, moneyed interests in leveraging the courts and the technicalities of administrative law to dismantle regulations they find threatening, or even just cumbersome. 

We should also be keenly aware of how these rulings stack the deck against a potential Harris administration—or any progressively inclined president. Indeed, even if Harris wins in November, agencies will have to navigate this new doctrinal thicket to enact significant regulatory policies. And many policies already in motion will also have to contend with this new landscape, from efforts to protect workers from noncompete clauses in employment contracts and the dangers of excessive heat, to efforts to protect consumers from predatory overdraft fees and prevent companies from charging a fee to sit with your kids on an airplane.

This is not to say progressives should simply accede to this attempt at neutralizing progressive governing capacity and power. Agencies themselves should continue to do the important work of serving the public interest. Loper Bright does not change any existing piece of congressional legislation—despite the insistence from some members of Congress that it does. Agencies have plenty of legal foundations and fact-specific rationales for pursuing important policy initiatives—including from statutes that have been in place for decades, covering everything from worker rights and competition to consumer protection, environmental protection, and civil rights. At the same time, the legal instability that agencies now face represents a deeper challenge to effective governance—one that Congress must ultimately rectify. Legislators should consider more explicit authorizations and mandates for agency actions to implement and enforce the substantive policies that might be a part of any bill that moves forward. 

More broadly, Congress will need to reclaim more of its own rightful authority to direct agencies to act in the public interest as it sees fit—and to reserve to Congress, not the courts, the ability to override improper judicial interpretations of Congress’s own statutes. If Congress does not act, this judicial overreach—and a judicial veto of future democratically sanctioned regulatory policy—will continue to worsen. Indeed, this judicial attack on democracy manifests not just as an attack on the executive branch, but also one on Congress, which has passed legislation the agencies are now implementing in ways the Court seeks to veto. Several promising bills have already been introduced. Senator Wyden’s recently announced bill codifies the principle of judicial deference to agencies while also creating a fast-track process for Congress to override improper judicial readings of congressional statutes. Senators Whitehouse and Cortez Masto similarly introduced an excellent bill to provide for Congress to more readily check Supreme Court interpretations. Going forward, similar provisions should be considered as standard fare, added to any substantive piece of legislation as a protection against judicial bad faith. 

We need to build a government that can do its job—efficiently and equitably.

Administrative capacity is central to democratic governance. We might think of democracy at its heart as a political institutional form in which government is both reflective of and responsive to the aspirations and urgent needs of the public—including and especially the most vulnerable and impacted communities. Just as the undermining of voting rights and campaign finance regulations and the use of gerrymandering undercut democracy on the front end, efforts to sabotage or dismantle administrative capacities represent a nullification of democracy on the back end. If governments cannot implement the policies that legislatures pass or that the public mandates through its selection of representatives and presidents, then we do not have a functioning democratic government.  

For that reason, progressives and democracy reformers need to start thinking about the administrative state itself, and how it can be rebuilt and renovated going forward. We have very real and urgent public needs: We need to build new housing and energy infrastructure—at scale, quickly, and equitably. We need to effectively and seamlessly deliver expanded safety net programs from health care to the child tax credit, especially to our most vulnerable communities. And we need to scale up our ability to monitor and corral corporate concentration and malfeasance and threats to civil rights. 

Thanks to the tireless efforts of civil servants and public officials across many agencies, we’ve seen a host of important and essential regulatory policies on these fronts. But achieving all of those goals will require administrative capacities that may well go beyond what our current institutions are resourced and built to achieve. Ultimately, our democracy will require not just a defense of the administrative state, but a reimagining as well.

If You Ask Eleanor

“One might suggest that democracy is today at the crossroads, and unless we show some zeal in fighting for fundamental democratic beliefs, we may find other beliefs in the ascendancy.”

- Eleanor Roosevelt, If you ask me (May, 1948)

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