Here’s another area you’ll hear more discussion about soon enough: How Democrats will handle the possibility that the current Supreme Court could take major steps towards gutting the regulatory state.
A new memo from Take Back the Court, a group that advocates for court reform, seeks to put this issue squarely on the table for discussion among the Democratic presidential candidates.
“With a Democratic president in charge of the administration and the regulatory process, we can expect right wing judges and justices to resume with vigor their multi-generation battle to do away with the modern regulatory state,” the memo warns.
The memo places the Democratic candidates on notice: If one is elected president, he or she will face a “highly consequential battle” in the judiciary to undercut laws that require agencies to employ a good deal of discretion and the use of “expert-driven regulation” to achieve their ends.
The occasion for this warning is a recent opinion written by Justice Brett M. Kavanaugh, which signaled that there may be five justices in place to carry out a long-cherished conservative effort to dramatically undercut the regulatory state.
At issue is the possibility of a revival of what’s known as the “nondelegation doctrine.” As Ian Millhiser usefully explains, legal conservatives have long taken the view that agencies are generally accorded too much discretion to decide how to implement major legislation. They want to severely restrict this discretion — which would also limit the agencies’ power to regulate business.
The reason for this discretion is that legislators want to grant agencies room to implement big, complex pieces of legislation as circumstances change. For instance, this allows the Environmental Protection Agency to implement the Clean Air Act with changing technologies without the need for constantly updated new legislation.
To oversimplify, the nondelegation doctrine is the idea that this discretion accorded to agencies must be severely curtailed. And in a recent ruling, Kavanaugh signaled support for reviving this doctrine, bringing the total of current justices who have done so to five — a majority.
As Millhiser notes, it is possible that the conservatives justices might not use the revived doctrine to gut major pieces of legislation and the discretion of agencies in an overtly concerted way, to carry out a preconceived agenda of dramatically weakening the regulatory state.
But, Millhiser adds, that threat will loom as a possibility, which could prove an “albatross around the neck” of Democrats, should they get back into power.
And, as Mark Joseph Stern noted for Slate, if this were to happen, it “could jeopardize a vast swath of laws that govern pollution, Wall Street, wage and hour rules, campaign finance limits, and more.”
The Take Back the Court memo urges the Democratic candidates to treat this possibility with deadly seriousness.
“We can expect right wing justices and judges to use an extremely narrow interpretation of agency authority in evaluating not just new statutes, but also the scope of the administration to regulate pursuant to existing statutes,” the memo says, adding that this could imperil “everything from clean air and water to fair labor standards to background checks on firearm sales and food safety.”
The memo urges Democrats to talk about how they plan to deal with this.
The approach that Take Back the Court prefers is for Democrats to pledge to try to expand the high court with more justices. While many worry this could usher in ever-escalating efforts to expand the court each time power shifts, the group’s operating premise is that Republicans already launched this escalation by flatly refusing a hearing to Merrick Garland, resulting in President Trump being able to fill a seat vacated while Barack Obama was in office.
"The candidates for president must recognize that the current activist conservative Supreme Court majority will effectively put the next White House in handcuffs from day one,” Aaron Belkin, the director of Take Back the Court, told me. “The Court poses a threat to the next president’s ability to govern, and candidates must address how they will overcome this challenge.”
Of the leading Democratic candidates, only South Bend, Ind., Mayor Pete Buttigieg and Sen. Elizabeth Warren (D-Mass.) have signaled an openness to trying to expand the court. But whatever specific reforms the candidates embrace, they at least must demonstrate a willingness to grapple searchingly with the immense obstacles the next president will face — both structurally speaking, and in terms of the opposition’s ideological makeup and readiness to employ scorched-earth politics.
Democratic voters deserve to hear this discussion.
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