Washington Monthly Op-Ed: Regulatory Government Is Democratic Government

James Goodwin

Feb. 10, 2022

When the conservative movement contrived to pack the U.S. Supreme Court with right-wing ideologues, one of the goals was to create a powerful ally in its campaign to dismantle the federal regulatory system, which we all depend on every day to safeguard our families, communities, and environment. With its recent decision in the emergency vaccine-or-test case, the Court’s conservative supermajority gave its clearest signal yet that it will advance this campaign from the bench.

The unsigned majority opinion and the concurrence authored by Justice Neil Gorsuch, when read together, lay out a comprehensive blueprint for defeating regulation in the public interest. Significantly, the arguments they raise are firmly grounded in the long-standing conservative myth that the regulatory system lacks sufficient “democratic accountability.” Quoting the late Justice Antonin Scalia, the concurrence casts the stakes in stark terms, warning of “government by bureaucracy supplanting government by the people.”

If the conservative justices’ frontal assault on our regulatory system were to succeed, the resulting harm would be incalculable. The vaccine-or-test standard alone would have prevented more than 6,500 deaths and 250,000 hospitalizations, according to the U.S. Department of Labor.

Less appreciated, though, the deconstruction of the regulatory system would also inflict serious harm on our system of democratic government. That’s because, contrary to Scalia’s glib canard, government by bureaucracy is government by the people. Conservatives on and off the high court fundamentally misunderstand—and willfully misrepresent—federal agencies’ role in responding to the public will and protecting the public interest.

Indeed, the regulatory system is quite literally democracy in action, as it invites and empowers members of the public to work with their government to implement policies to keep our drinking water free of contaminants, ensure that the food on store shelves is safe to eat, prevent crooked banks from cheating customers, and much, much more. In fact, one of the defining attributes of the federal regulatory system, as the administrative law expert William Funk has noted, is the myriad opportunities it offers for public participation throughout the policy implementation process, from agenda setting to enforcement.

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