This is the second part of a two-post set. Read the first post here.
In yesterday's post, I discussed the essentially undemocratic ways that conservatives have come to the brink of a 6-3 majority on the Supreme Court and examined one significant implication for regulatory policy: the likely effect on the Court's view on Chevron deference. In this second post, I explore several other ways the Court could undermine the essential democratic character of the regulatory system.
Nondelegation. Progressives dodged a big bullet in 2019 when the Supreme Court handed down its decision in Gundy v. United States. In the case, conservatives sought to resuscitate a long-dormant doctrine known as nondelegation, which generally prohibits Congress from transferring its legislative authority to another branch, but again fell one vote short of doing so. Similar to Chevron deference, conservatives believe that the federal courts’ failure to enforce a more muscular nondelegation doctrine has enabled the growth of the regulatory system. As is so often the case, this conservative line of argument depends upon a mistaken and ahistorical understanding of nondelegation, but that has the “convenient” result of placing arbitrary limits on Congress’s ability to address public policy problems through regulatory legislation. It was Congress’s intention through statutes like the Clean Air Act and the Occupational Safety and Health Act to create a living legislative framework that could adapt to meet new and emerging challenges that might implicate their overarching goals and objectives – protecting people who breathe and who work, for example. These frameworks allow for energetic and responsive legislation and are a constitutionally legitimate way to address problems that present themselves in many forms, like pollution and unsafe workplaces.
Through their specious conception of nondelegation, conservatives hope to entice activist judges to thwart the legislative intent of democratically elected members of Congress. Unable to muster the votes in Congress to amend or repeal bedrock regulatory laws, they hope instead that the nondelegation doctrine will enable judges to do their dirty work for them. Barrett might provide the fifth vote for reviving the nondelegation doctrine if the right case comes before the Court.
Cost-benefit analysis. Over the course of several decades, conservatives have sought to elevate their peculiar version of cost-benefit analysis to make it the principal, even exclusive, criterion to govern regulatory decision-making. They would tell you that their approach comprehensively monetizes all regulatory impacts and then identifies the optimal regulatory solution that maximizes net benefits. In fact, their model ignores massive benefits so as to permit regulations that allow for a relatively uninhibited pursuit of corporate profit at the expense of Americans' health and safety. The problem conservatives face with making cost-benefit analysis the cornerstone of regulatory practice is that Congress, in writing regulatory statutes, has routinely rejected the approach and instead adopted other decision-making standards that either prohibit the conservatives’ version of cost-benefit analysis or render its methodologies largely irrelevant.
Despite its lack of firm legal footing, the conservatives’ version of cost-benefit analysis still holds considerable sway in regulatory decision-making, even to the point of displacing other statutory standards. To really seal the deal, though, conservatives sought and repeatedly failed to ratify through legislation the privileged status of their version of cost-benefit analysis. A Supreme Court with Barrett on the bench, however, might step in and do the job for them by, for example, reading a cost-benefit analysis requirement into the Administrative Procedure Act. Many conservatives claim that the Court already did this in the 2015 case Michigan v. EPA, even though the majority opinion quite clearly rejects such a reading. Emboldened by Judge Barrett’s presence, a future Court might prove less squeamish about imposing a cost-benefit analysis super-mandate that rewrites hundreds of laws by judicial fiat.
Independent agencies. Congress has intentionally designed certain agencies to be insulated against improper political interference from the president. The missions of these independent agencies are often technically complicated or involve politically sensitive matters. This species of agency has become a favorite bogeyman of conservatives in recent years, supposedly illustrating the growing threat posed by “unaccountable bureaucrats.” To the contrary, these agencies are subject to numerous effective accountability mechanisms, and, if anything, fulfill their missions more faithfully to Congress’s instructions thanks to their insulation against improper presidential interference.
The Supreme Court recently handed conservatives a narrow victory on this matter in Seila Law v. Consumer Financial Protection Bureau, which effectively stripped the CFPB of its status as an independent agency. But Seila Law fell short of conservatives’ real goal of having the Supreme Court overrule decades of precedent recognizing the constitutional legitimacy of independent regulatory agencies. The Court will have a chance to pass on the question again during the upcoming term, and this time, with Barrett as part of its lineup, it might not blink.
What do conservatives gain from a world without independent agencies? One of the most important results from their standpoint is subjecting these agencies to direct presidential oversight via the White House Office of Information and Regulatory Affairs (OIRA). Not only has OIRA provided corporate interests with a powerful forum in which to exert influence over regulatory decision-making; it has also been effective promoting the privileged role that conservatives’ cost-benefit analysis now enjoys in the regulatory system. The conservative attack on independent agencies would thus make them less democratically accountable by rendering them more susceptible to dominance by corporate interests.
Citizen suits. There aren’t many more powerful opportunities for public participation in our democracy than the regulatory system’s citizen suits. These opportunities, which are provided for in a handful of regulatory statutes, authorize ordinary Americans to bring suit against an individual or business for a regulatory violation or against an agency for failing to implement mandatory duties under the statute. It’s refreshingly democratic when you think about it – the notion that one person could hold even the most powerful corporation in the world accountable for a regulatory violation. So, of course, conservatives and their corporate interest allies hate them. Recognizing that amending statutes to eliminate their citizen suit provisions is unlikely to succeed, conservative lawmakers have instead sought to attack such suits indirectly by making it more difficult for individuals to bring them (i.e., by making it harder to obtain attorneys’ fees when the citizen suit succeeds). Again, as these efforts flounder, they have turned to the federal courts for assistance.
For example, a conservative law professor has recently filed an amicus brief in a pending federal district court case involving a Clean Air Act citizen suit that attempts to make the case that citizen suits are unconstitutional. As CPR Member Scholar Joel Mintz explains, though, this argument is not persuasive, to say the least. But who knows what a Supreme Court with a Justice Barrett added to its lineup is capable of? If it is willing to take radical steps like reinstating the nondelegation doctrine or imposing a cost-benefit analysis super-mandate, is declaring citizen suits unconstitutional so far-fetched? Short of this extreme result, a more conservative Supreme Court might merely content itself with further circumscribing individual standing to bring citizen suits in the first place, rendering the power they might afford all but useless – just as the Court has allowed all manner of restrictions on abortion rights, voting rights, and more.
Of course, these attacks on the regulatory system do not cover the full waterfront of the likely dangers a Supreme Court with Barrett as a member poses to citizen access to the courts. A future Supreme Court might also continue working to deny people access to the civil courts where they might vindicate their rights through tort litigation. It might, for example, endorse expansive readings of federal law as preempting state tort law claims, or it might expand on recent decisions that have empowered businesses to impose forced arbitration agreements on their workers and customers.
But there’s also an irony here, considering that conservatives have long sought to portray the regulatory system as anathema to U.S. democratic principles. Make no mistake: Conservatives recognize, and evidently fear, the democratic potential of the regulatory system – and especially its potential to fundamentally redistribute political and economic power back to ordinary Americans. That is why they have so carefully cultivated a false narrative that portrays the regulatory system as anti-democratic. And it is why they have so aggressively pursued their campaign to strip the regulatory system of its democratic features.
Given the likely future makeup of the Supreme Court, their campaign very well might succeed. The future of our regulatory system as a critical element of our democracy looks grim.