Editor’s note: This post draws directly from the author’s press statement on Corner Post v. Board of Governors.
The U.S. administrative state does not merely protect Americans against those threats that we are unable to protect ourselves from on our own. It is essential to a healthy economy, it provides a crucial platform for democratic self-government, and it functions as a great social equalizer.
All of this is now at risk after the U.S. Supreme Court’s conservatives issued four separate decisions largely along ideological lines aimed at eviscerating this crucial institution. The administrative state has been built over the course of nearly 250 years, slowly and pragmatically, since the founding; it has taken just three decision days for six unelected lawyers to undo much of that work.
The Court’s decision in SEC v. Jarkesy will have a chilling effect on agencies’ ability to enforce existing regulations, taking one critical tool away from agencies necessary for fulfilling the missions Congress created for them. The decisions Loper Bright v. Raimondo and Ohio v. EPA similarly will impede agencies’ ability to use rulemakings to fulfill those missions. And if those two cases lit a match for greater corporate-driven litigation against agency rules, July 1’s decision in Corner Post v. Board of Governors pours gasoline on it. It says that now any rule, no matter how old, is open for judicial review and rescission.
The sum effect of these decisions is to shift power from regulatory agencies, where the public plays an important role in shaping the policies that affect them, to the federal courts, where well-resourced corporate repeat players enjoy an enormous advantage over the public.
But such minority rule can only last so long in our constitutional democracy, no matter how captured our judicial institutions. We, the people, have the power to reclaim self-government from the judiciary, and that work must begin today.