While the media and Democrats spent the time leading up to the Independence Day holiday in paroxysms over Joe Biden’s disastrous debate performance, the final rulings of the Supreme Court’s term brought a breath of fresh air. Several major decisions weakened the administrative state in ways long sought by conservatives.
The fact that the three liberal justices dissented from each of these rulings, and offered a proverbial “parade of horribles” when doing so, speaks to how the left wants unelected bureaucrats to run the country — and our lives — for us. The actions hemming in the administrative state put power back where it belongs in our representative democracy — with the nation’s elected representatives and ultimately with the people.
The Rulings
The three rulings in the court’s final three days each take on an element of the bureaucratic power that agencies have arrogated to themselves in recent years. In SEC v. Jarkesy, the court held that the Securities and Exchange Commission’s method of assessing penalties via administrative tribunals violated rights under the Seventh Amendment right to jury trials. The ruling gives defendants greater procedural rights to challenge penalties assessed by federal agencies in open court, rather than starting in administrative proceedings often biased in favor of the agency, with judicial review frequently rubber-stamping the agency’s actions.
In Corner Post v. Federal Reserve, the court ruled that the statute of limitations for challenging agency actions begins when a potential plaintiff is harmed by that action, not when the action is finalized. As with Jarkesy, this ruling will give entities harmed by agency regulations more power to challenge those regulations in court.
But the lynchpin of this judicial troika came in Loper Bright Enterprises v. Raimondo, which struck down the court’s 1984 precedent in Chevron v. National Resources Defense Council. The Chevron case provided that if a statute’s wording was ambiguous, courts should defer to the agency’s interpretation of the statute, provided that interpretation was “reasonable.” Now courts can give an agency’s interpretation of a law weight, even great weight, but they are not obligated to endorse that interpretation.
The Rulings’ Importance
These rulings all removed power from unelected officials in the executive branch and placed it where it belongs — with elected officials in the form of the president and members of Congress. Agency employees can no longer create administrative “star chambers” to target individuals with minimal due process protections. Nor can agencies rewrite regulations every four years on a political whim, and assume that federal courts will rubber-stamp one interpretation of a statute due to Chevron deference when they had endorsed a completely different interpretation of the statute previously. These changes will circumscribe Republican administrations as much as Democrat ones.
“Trump appointees will have a harder time rewriting the law without congressional legislation,” The Wall Street Journal editorial board noted. “This is a check on willful presidential power.” So much for the allegations by the left that the court’s decision on presidential immunity means Donald Trump can assume king-like powers.
When it comes to most elements of the three cases regarding the administrative state, Congress and the president can rewrite the laws if they choose; Jarkesy involves the nexus of statutory interpretation and Seventh Amendment jurisprudence. As Justice Barrett’s conclusion to the majority opinion in Corner Post noted, “We do agree with the dissent on one point: ‘The ball is in Congress’ court,’” Barrett wrote. “The solution is for Congress to enact a distinct statute,” responding to the court’s ruling.
Democrats Oppose Democracy
But Democrat lawmakers — and Republican ones, for that matter — often don’t want to enact explicit statutes. They find it much easier to pass vague bills and have unelected bureaucrats fill in the details, the better to give themselves plausible political deniability. Recall that Nancy Pelosi — she of “We have to pass the bill so that you can find out what is in it” fame — and her House Democrat colleagues first proposed passing Obamacare without even voting on the bill itself.
For all their recent talk about “protecting democracy,” Democrats want rule by experts — i.e., not you and me. For instance, a 2011 article by Peter Orszag, President Obama’s first budget director, claimed that our nation had “Too Much of a Good Thing: Why We Need Less Democracy.”
To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions. In other words, radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic.
Individually and collectively, the Supreme Court’s decisions in Jarkesy, Corner Post, and Loper Bright work to remedy the administrative state’s undemocratic nature, which might explain why the liberal justices and the left opposed each so loudly. Together, these three important rulings reinforce and restore the mantra that “here, the people rule.”
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