Twice in two days, the Supreme Court’s conservative supermajority has issued sweeping rulings that run counter to established precedent and will limit the ability of regulators to impose rules on powerful corporate interests.
On Friday, the six Republican-appointed judges overturned a 40-year-old foundational part of American law, the Chevron Doctrine. This doctrine makes it easier to successfully challenge regulations in court by removing the requirement that courts rely on the expertise of federal agencies in interpreting their laws.
The day before, the justices had struck down a key practice used by many agencies to enforce rules through internal tribunals, rather than summoning accused wrongdoers in federal court before juries.
Each decision was based on a different reason, but both pointed in the same direction: eroding the power of the federal regulatory bureaucracy. And the two decisions are just the latest to underscore that theme, making clear that the current majority’s push for a deregulatory agenda will be part of its legacy.
All six Republican appointees to the court came of age amid the conservative judicial movement. Curbing the so-called administrative state has long been a central goal of the movement’s libertarian faction—and of the wealthy donors who have bankrolled its rise over the past half century.
The struggle dates back to the Great Depression and the New Deal era of the 1930s, when economic disaster had diminished the political power of wealthy business interests. Against that backdrop, President Franklin D. Roosevelt and his allies in Congress created the modern administrative state.
The aim was to find a new way to bring order to an economy that had become increasingly complex during the Industrial Revolution, banking crises and the rise of massive telecommunications and broadcasting technologies. Rather than trying to manage at a granular level, lawmakers passed broad laws to govern different sectors and created agencies of technical experts to create and enforce specific regulations.
This governance structure has become the way American society imposes rules on powerful business interests in a wide range of areas, such as ensuring clean air and water, the safety of food, medicine, vehicles and consumer products, and preventing financial institutions from lighting up.
Regardless of their value to society as a whole, such regulations can also erode entrepreneurs’ profits. From the beginning, many wealthy interest groups condemned the administrative state as socialism.
While Eisenhower-era Republicans in the 1950s approved of the new agencies, conservative critics by the end of the next decade increasingly emphasized that the free enterprise system was being stifled by unaccountable government bureaucrats.
A once-secret 1971 memo to the U.S. Chamber of Commerce, written by a lawyer who had represented the tobacco industry, gave shape to that vision: It proposed a plan to change public opinion and build political influence to restore the administrative state to push. (The lawyer behind it, Lewis F. Powell Jr., would soon be appointed to the Supreme Court by President Richard M. Nixon.)
That long game had many facets, including the funding of think tanks like the American Enterprise Institute and the Heritage Foundation. It was also an ideological tenet of the conservative legal movement that took root in the 1970s, a tenet that circulated through the influential network that developed over the next decade to advance that movement: the Federalist Society.
The movement first came to power during the Reagan administration and has since nurtured ambitious Republican lawyers. Young conservative lawyers who came of age and worked for Reagan included Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. Notably, Reagan also put the mother of Justice Neil M. Gorsuch in charge of the Environmental Protection Agency, where she pursued a controversial deregulatory agenda.
Years later, after President Donald J. Trump essentially cut a deal with the conservative legal movement to guide his judicial appointments, his White House counsel, a longtime stalwart of the Federalist Society, stood Donald F. McGahn II, hostile to administrative authorities. set a litmus test.
As he seeks a return to power, Trump has promoted business interests behind closed doors, promising tax cuts and deregulation, including asking oil industry executives to fund his campaign and rolling back environmental regulations. He and his advisers have vowed to dismantle the administrative state, including bringing independent regulators under direct White House control and making it easier to fire tens of thousands of officials and replace them with people loyal to his agenda.
But regardless of whether Mr. Trump is re-elected, he has already undermined this government structure. His three appointments to the Supreme Court have all but ensured that it will be dominated by Republican appointments for many years to come, even though Democrats have won the popular vote in seven of the last eight presidential elections.
That the majority has aggressively wielded its power to achieve victories in the conservative culture war—most notably by eliminating the constitutional right to abortion in 2022, fulfilling another longtime goal of the conservative legal movement. But even if it’s less obvious to the general public, the unfolding assault on the administrative state could have equally profound consequences.
The Republican majority has also made it easier in recent years to sue agencies to overturn their rules, in part by promoting the so-called major questions doctrine. Under that idea, courts would have to strike down economically significant regulations if judges decided Congress wasn’t clear enough in authorizing them.
To advance and entrench that idea, the court, for example, struck down an EPA rule aimed at limiting carbon pollution from power plants and prohibited the Occupational Safety and Health Administration from telling large employers to tell their workers get vaccinated against Covid-19. or have them tested regularly.
And in one Ruling 2020the five Republican appointees then on the court rejected a provision of the law that Congress had passed to create the Consumer Financial Protection Bureau. The law protected its head from being arbitrarily removed by a president without good cause, such as misconduct.
It’s certainly true that the court hasn’t always gone as far as liberals wanted. This term, the justices rejected a challenge to the way the Consumer Financial Protection Bureau is funded. To reject it would have opened the door to lawsuits seeking to overturn every regulatory and enforcement action it has taken in its 13-year history, including those related to mortgages, credit cards, consumer lending and banking.
But while Chevron’s overthrow is, for now, the capstone victory in the conservative legal movement’s assault on the administrative state, it need not be the end of the road. More extreme opponents of regulation hope the court will go further and declare a sweeping interpretation of the so-called nondelegation doctrine the law of the land.
Under that theory of the Constitution, Congress should not be allowed to delegate its legislative power to technocratic experts at executive agencies to devise legally binding rules. If that idea were embraced by a majority of the court, the entire government structure of regulatory agencies — and the rules they have developed over the decades — could collapse.
