Democracy Journal - How the Supreme Court Is Attacking Democracy
Senior legal analyst Daniel Hanley shines a light on The Court’s assaults on executive agencies are really attacks on responsive and democratic government.
The Supreme Court is leading the conservative assault on federal administrative agencies—an important, if often hidden, aspect of the American government—in plain sight. Within the last 12 months alone, two Supreme Court decisions, West Virginia v. EPA and Axon Enterprise, Inc. v. FTC, have struck damaging blows to the administrative system. In its coming term, the justices will hear another case, Loper Bright Enterprises v. Raimondo, that could prove to be its death knell.
The consequences would be enormous. Agencies ranging from the Federal Trade Commission to the Post Office not only oversee the day-to-day affairs of government but also serve as arms of Congress by enacting and enforcing regulations. Congress endows agencies with a surfeit of responsibilities, from regulating air pollutants to ensuring the safety of our pharmaceuticals and keeping our markets open and fair. Similarly, many, if not most, of the significant political actions in a President’s term originate from agencies implementing a policy rather than Congress enacting a law. In other words, the modern American government could not exist without the contemporary administrative apparatus.
For this reason, it should come as no surprise that agencies are a prime target for reactionary thinkers and politicians who seek to confine and degrade the role of government. This task has now been taken up by the increasingly conservative federal judiciary. Decisions like West Virginia and Axon have weakened Congress’s ability to legislate, leaving the public ever more dependent on reactionary courts that establish public policy by judicial fiat. The Supreme Court’s decision in Loper will go even further, effectively determining how much regulatory power agencies can exercise. In all likelihood, the conservative majority will rule that courts can decide both the merits and scope of agency policies—a decision that would fundamentally change the structure of America’s administrative apparatus and upend nearly 40 years of precedent.
If the Supreme Court succeeds in its endeavor, the government’s ability to respond meaningfully to social problems will be significantly eroded. Progressive lawmakers must seriously challenge these advances and defend the fundamental purpose of administrative agencies and their role in our democracy. Otherwise, a conservative victory is all but inevitable.
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