The Supreme Court Won’t Stop Executive Overreach

Presidential appointees, business advocates complain, routinely overstep the authority given them by Congress in how they write and enforce rules. With the addition of Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, business sees the Supreme Court as a reliable bulwark against executive branch overreach.

.. Judge Kavanaugh believes presidents, unlike regulators, are owed considerable deference, especially on national security and law enforcement. That’s significant because Mr. Trump is now using national security to justify his own economic interventions, especially on trade.

.. Much of the controversy over the administrative state harkens back to 1984, when the Supreme Court decided, in a case involving the Environmental Protection Agency, Chevron U.S.A. Inc. and an environmental group, that when a law is unclear, the court should defer to a federal agency’s interpretation of that law.

.. Courts have cited Chevron deference, as this doctrine is known, to grant wide latitude to regulatory agencies, from the EPA to the Department of Labor and the Federal Communications Commission. Many conservatives blame it for a decadeslong transfer of power to the executive branch. They questioned the legality of President Barack Obama’s routine use of executive authority, such as limiting greenhouse gas emissions and suspending some deportations of illegal immigrants, to sidestep Congress.

.. “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” he wrote in 2016 in the Harvard Law Review.
It encourages the president, regardless of party, to “be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”

.. Both parties have agencies they love to hate: For Republicans, it’s the EPA and the Consumer Financial Protection Bureau; for liberal Democrats, it’s now Immigration and Customs Enforcement. For both, it’s the Internal Revenue Service or the Justice Department when the other party controls the White House. In each case, a change of president is usually enough to change the agency’s behavior.

.. Yet even as he rolls back the administrative state, Mr. Trump has pushed the boundaries of presidential authority. He has imposed steep tariffs on imports of aluminum and steel and is planning the same on cars, citing his national security authority under a little-used 1962 law. Mr. Trump is also weighing forcing utilities to buy more coal and nuclear-generated power, also on national security grounds. 

In both cases, national security appears to be a pretext to shore up economically beleaguered industries.
..  “There is a pronounced dichotomy between Kavanaugh’s view on deference to agencies as opposed to his view on deference to presidents,” says Jonathan Turley, a law professor at George Washington University. He says Congress has been progressively marginalized by the expanding authority of both federal agencies, and presidents; Judge Kavanaugh seems to oppose the first and encourage the second.

.. Judge Kavanaugh’s concurring opinion, as a judge on the U.S. Court of Appeals for the D.C. Circuit, in 2015 that the National Security Agency could collect an individual’s telephone “meta data.” Because the purpose was preventing terrorist attacks, he said, it didn’t violate the Fourth Amendment’s prohibition on unreasonable search and seizure.

The Government Gorsuch Wants to Undo

But the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction.”

.. a small group of conservative intellectuals have gone much further to argue that the rules that safeguard our welfare and the orderly functioning of the market have been fashioned in a way that’s not constitutionally legitimate. This once-fringe cause of the right asserts, as Judge Gorsuch put it in a speech last year, that the administrative state “poses a grave threat to our values of personal liberty.”

.. As the court has recognized over and over, before and since 1935, Congress is a cumbersome body that moves slowly in the best of times, while the economy is an incredibly dynamic system. For the sake of business as well as labor, the updating of regulations can’t wait for Congress to give highly specific and detailed directions.

.. The administrative state isn’t optional in our complex society. It’s indispensable.

.. The rule came to be known as Chevron deference: When Congress uses ambiguous language in a statute, courts must defer to an agency’s reasonable interpretation of what the words mean.

.. Justice Antonin Scalia reached the Supreme Court, he declared himself a Chevron fan. “In the long run Chevron will endure,” Justice Scalia wrote in a 1989 article, “because it more accurately reflects the reality of government, and thus more adequately serves its needs.”

.. Judge Gorsuch argued that Chevron — one of the most frequently cited cases in the legal canon — is illegitimate in part because it is out of step with (you guessed it) Schechter Poultry.

.. Judge Gorsuch is skeptical that Congress can use broadly written laws to delegate authority to agencies in the first place. That can mean only that at least portions of such statutes — the source of so many regulations that safeguard Americans’ welfare — must be sent back to Congress, to redo or not.

.. What would happen if agencies could not make rules for the financial industry and for consumer, environmental and workplace protection? Decades of experience in the United States and around the world teach that the administrative state is a necessary part of the modern market economy. With Judge Gorsuch on the Supreme Court, we will be one step closer to testing that premise.