One of Justice Antonin Scalia’s final acts was to strike down President Obama’s plan to stave off the climate crisis.
On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.
The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration’s most ambitious effort to fight climate change. Had the Clean Power Plan taken effect, the EPA predicted that by 2030 it would have reduced overall carbon dioxide emissions from utility power plants 32 percent from where they were in 2005.
But the Clean Power Plan never took effect. Though the Supreme Court’s order halting the plan was temporary, Donald Trump’s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn’t replaced this Obama-era policy with a significantly weaker rule, the appointment of Neil Gorsuch to fill Scalia’s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.
The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off. This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “deconstruction of the administrative state.”
Enter the Roberts Court, fortified by Trump’s appointees. With six conservative justices, the Court has the votes it needs to make Bannon’s goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of the executive branch’s authority.
It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.
So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.
But the right’s approach to federal agencies shifted drastically during the Obama administration. With the GOP’s grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary’s power to strike down new rules pushed by federal agencies. By Obama’s second term, the conservative Federalist Society’s national lawyers convention became a showcase of proposals to deconstruct the administrative state.
All of this culminated in Justice Neil Gorsuch’s opinion in Gundy v. United States (2019), which called for strict new limits on federal agencies — and for the judiciary to even strike down many federal regulations as unconstitutional. Though Gorsuch’s opinion was a dissent — that is, he didn’t yet have a majority for it — five justices now on the Court have largely endorsed his framework, which relies on a conservative legal principle known as “nondelegation.”
In other words, it may be only a matter of time before the Court starts striking down Biden administration regulations that rely on legal arguments that would have been treated as nonsense just a decade ago.
At least since the Franklin Roosevelt administration, federal agencies have had wide latitude to implement the policies the president campaigned on. And agency-initiated regulations answer such important questions as who has access to health care, how much workers are paid for their labor, and a wide range of environmental questions that go well beyond the Clean Power Plan.
So, no matter what issue you care about, there is likely a federal regulation that shapes the nation’s approach to that issue. If the Supreme Court strips the government of much of its power to promulgate these regulations, it could effectively grind down the Biden presidency — not to mention dismantle much of American law.
Federal regulation, explained
Before we can understand how the Supreme Court might remake the balance of power between the executive and the judiciary, it’s important to understand what it means for a federal agency to regulate.
As a general rule, Congress can regulate businesses in two ways.
The most straightforward approach is simply to command industries to conduct their business in a certain manner. Thus, if Congress wants to reduce certain polluting emissions, it could enact a law that orders power plants to use a particular technology that reduces emissions.
But Congress is a slow-moving body, and federal laws are difficult to amend. If, in the 1970s, Congress had commanded power plants to use the best emissions reduction technology that existed at the time, it could have potentially locked these plants into using obsolete tech that is vastly inferior to the technology available now. At a minimum, Congress would have struggled to stay on top of new developments and to update this law as new methods of reducing emissions were invented.
For this reason, Congress may also regulate businesses in a second way. It can pass a law that lays out a broad federal policy but leave the details of how to implement that policy up to a federal agency. Often, such delegation means giving that agency a fair amount of authority to determine how businesses operate, so long as the agency uses this authority to advance the policy goal enacted by Congress.
When Congress wrote the Clean Air Act, for example, it made sure that the rules governing power plants could evolve as technology improves. Under this law, power plants must update their systems for reducing emissions to ensure that they achieve the same “degree of emission limitation achievable through the application of the best system of emission reduction” that currently exists, while also accounting for factors such as cost.
Congress also gave the job of figuring out what the “best system of emission reduction” is at any particular moment to the EPA administrator. As a practical matter, that means that EPA employees who are experts on environmental regulation and the energy industry will study which new technology is available and will update the rules governing power plants as that technology evolves.
And that’s exactly what EPA did when it created the Clean Power Plan. EPA determined that, to achieve the “best system of emission reduction,” at least some energy companies would need to shift from fairly dirty coal-fired electricity production to cleaner methods such as natural gas, or to renewable methods that result in no emissions at all.
Rules such as this one, which are promulgated by a federal agency pursuant to a federal law permitting them to do so, are known as “regulations.” When Bannon spoke of deconstructing the administrative state, or when the Federalist Society showcased proposals to diminish the executive branch’s authority, a major thrust of that project involved stripping agencies of much of their ability to regulate.
Ideally, laws like the Clean Air Act make complex lawmaking possible without having to sacrifice democratic accountability. Regulation allows our laws to be both democratic and dynamic. Such laws are democratic because the goals of federal policy — goals such as ensuring that power plants use the best emission reduction technology available — are still set by the people’s elected representatives in Congress. But they are dynamic because it allows federal rules to be updated without requiring Congress to enact a new law every time a new innovation is developed.
Yet, despite these advantages, the very idea that Congress should be free to delegate power in this way has many enemies within the conservative legal movement. In a 2016 opinion, for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies’ ability to regulate “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
After his elevation to the Supreme Court, Gorsuch called for strict new limits on the federal government’s power to regulate in his Gundy opinion. And since then, five members of the Court’s Republican-appointed majority have signaled, albeit in two different cases, that they agree with Gorsuch’s plans to restrict agency power.
Gorsuch and his allies do not simply view Congress’s power to delegate rulemaking authority to agencies as undesirable. They view broad delegations of power as inconsistent with the Constitution itself. And their narrow vision of federal power has profound implications for workers, consumers, patients, and the environment.
The future of federal regulation
There’s a name for this vision that Gorsuch and the Court’s conservatives are invoking: “nondelegation.”
Nonedelegation is the largely defunct idea that the Constitution places strict limits on Congress’s ability to delegate power to federal agencies. Although the Supreme Court briefly wielded the nondelegation doctrine to strike down New Deal policies that gave a simply extraordinary amount of regulatory power to President Roosevelt, this doctrine largely lay dormant for generations. And the Court’s decisions prior to Gundy emphasized just how reluctant courts should be to strike down laws permitting agencies to regulate.
Longstanding Supreme Court precedents hold that Congress has a broad authority to delegate power. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”
Thus, the Court has explained, Congress may delegate regulatory power to agencies so long as it “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”
While Reaganism was ascendant, conservative judges were often the biggest cheerleaders for broad judicial deference to federal agencies, frequently justifying such deference as a way to keep an unelected judiciary from undercutting democracy. As then-Judge Kenneth Starr wrote in a 1986 article on administrative law, “in part because federal judges are not directly accountable to any electorate, I believe they have a duty voluntarily to exercise ‘judicial restraint.’”
But these conservative calls for judicial restraint have since been replaced with bold demands for judicial intervention against federal agencies once Reaganism faded and Obama’s liberalism gained steam. A new conservative approach to administrative law, which seeks to concentrate power within a judiciary dominated by Republican appointees, is now ascendant.
In early October 2019, just a few days before Justice Brett Kavanaugh was confirmed to the Supreme Court, the eight remaining justices heard Gundy v. United States (2019), a case brought by a convicted sex offender who challenged his conviction for failing to register as a sex offender when he moved to New York. Herman Gundy’s case went after a federal statute that allowed the Justice Department to determine which sex offenders, who were convicted before a certain date, had to register with their state governments (the Justice Department determined that all eligible offenders must register).
Gorsuch used his opinion in Gundy to criticize the longstanding rule laid out in cases like Mistretta. Warning that permitting Congress to delegate power to agencies risks giving those agencies “unbounded policy choices,” Gorsuch proposed a vague new limit on Congress’s power to delegate.
According to Gorsuch, delegations of power to agencies must be struck down unless Congress put “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
This vague new standard is inconsistent with the framers’ understanding of the Constitution. As explained below, early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials.
And Gorsuch’s rule would effectively consolidate an enormous amount of power within the judiciary.
As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?
The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.
In theory, that could mean that federal regulations will simply receive more scrutiny from an impartial judiciary. But, in practice, the judiciary is only as good as the judges who staff it. If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration.
It should be noted that Gorsuch’s opinion in Gundy was a dissent — the opinion was joined only by Chief Justice John Roberts and Justice Clarence Thomas. But Justices Samuel Alito and Kavanaugh have both signaled in other opinions that they share Gorsuch’s desire to revive the nondelegation doctrine.
And in Little Sisters v. Pennsylvania (2020), five justices signed on to an opinion by Justice Thomas, which strongly suggests that many of the Affordable Care Act’s (ACA) provisions requiring health insurers to provide a minimum level of coverage to their customers are unconstitutional under the nondelegation doctrine.
Little Sisters considered a provision of the ACA allowing a federal agency to determine which forms of “preventive care and screenings” for women must be covered without copays or other out-of-pocket costs by health insurers. Among other things, the agency determined that contraceptive care must be covered.
Yet Thomas’s majority opinion strongly suggests that this provision of the Affordable Care Act violates the nondelegation doctrine. He accuses Congress of giving “virtually unbridled discretion to decide what counts as preventive care and screenings” to a federal agency. Thomas’s decision lays the groundwork for the Supreme Court to eventually strike down the requirement that health insurers cover birth control (and possibly other, similarly worded provisions of Obamacare requiring coverage of immunizations and pediatric care).
Indeed, in late February, a conservative federal judge in Texas cited Little Sisters to suggest that multiple provisions of the ACA may be unconstitutional under the nondelegation doctrine.
And it won’t be just the ACA. Literally any regulation pushed during the Biden presidency, dealing with a wide range of matters from the fight against climate change to the protection of workers, could be vetoed by a Republican Supreme Court under this doctrine.
The constitutional arguments for the nondelegation doctrine are quite weak
This consolidation of power within a conservative judiciary could happen despite the fact that the nondelegation doctrine rests on the thinnest of constitutional reeds.
The Constitution gives Congress the “legislative” power, and the president and the various federal agencies that answer to the president the “executive” power.
The legislative power, according to Gorsuch, is the power to “adopt generally applicable rules of conduct governing future actions by private persons.” And proponents of nondelegation claim that the Constitution places strict limits on Congress’s ability to delegate this power to agencies merely tasked with executing existing laws.
Often, proponents of the nondelegation doctrine quote a passage from the political philosopher John Locke, who claimed that “the legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.”
But there are many problems with this account of Congress’s ability to delegate power. For one thing, it misunderstands Locke. As law professors Julian Davis Mortenson and Nicholas Bagley note in an important paper, Locke draws a distinction between the legislature’s ability to “transfer” power and a “delegated” power.
Transferring a power requires a “permanent alienation” — that is, for Congress to “transfer” legislative power, it would have to give up that power forever to some other person or body. But Locke raised no objection to a legislature delegating a power, meaning that lawmakers may assign the ability to make certain binding rules to an agency, so long as the legislature retains the ability to take that power back.
Indeed, if anything, Locke’s quote undercuts the argument for the nondelegation doctrine because it recognizes that the legislative power has already been delegated once — to the legislature itself. Locke describes the power to make laws as “a delegated power from the people.” That is, it is the people, not the Congress or some other representative body, that has the inherent power to make rules that bind the whole of society. When the Constitution created Congress, it delegated the people’s power to make laws to that Congress. And Congress may, in turn, delegate a portion of that power to federal agencies.
Congress’s early history supports this reading of the Constitution, as the very first Congress enacted numerous laws giving vast discretion to other government officials. It allowed officials overseeing the Northwest Territory to “adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district.”
And it delegated Congress’s entire power to provide patents to inventors to executive branch officials, allowing the secretary of state, the secretary of war, or the attorney general to grant patents so long as they “deem the invention or discovery sufficiently useful or important.”
The First Congress didn’t simply give executive branch officials the power to issue licenses that would allow merchants to trade with Native American tribes, it also allowed the executive to promulgate regulations that would govern license holders “in all things touching the said trade and intercourse.”
The First Congress allowed the president to identify wounded or disabled soldiers, and to place them on “the list of the invalids of the United States, at such rate of pay, and under such regulations, as shall be directed by the President of the United States, for the time being.”
And it delegated to “any common law court of record” the power to grant citizenship to any free white person who resided in the country for two years, provided that the court was satisfied that the new citizen is a “person of good character.”
So the framers understood the Constitution to allow Congress to grant broad authority to federal agencies, and the position outlined by Gorsuch’s opinion in Gundy and Thomas’s opinion in Little Sisters is tough to square with this history.
But in the Supreme Court of the United States, history and constitutional text matter little if a party has five votes. And the nondelegation doctrine almost certainly has five votes.
President Biden will hardly be the first president to face lawsuits challenging his administration’s regulations. But he is likely to be the first president since Roosevelt to face a judiciary that’s so eager to rein in agency power.
This essay is adapted from the author’s book, The Agenda: How a Republican Supreme Court Is Reshaping America.