SCOTUS Is Scared of Fundamental Questions
Editor's Note
For forty years, U.S. courts have deferred to unelected bureaucrats for the interpretation of ambiguous statutes. The principle of “Chevron deference” is the legal basis of the administrative state, the extra-constitutional rule by experts that provides the legal framework and the workaday operations of the group quota regime.
In Loper Bright v. Raimondo, the case that overturned Chevron, attorney T.J. Harker sees a pattern becoming all too common in major SCOTUS decisions: When faced with a matter of grave national consequence, the justices rule on a technicality while skirting the fundamental issue. Harker argues that this abdication is not just judicial malfeasance but an existential threat to republican self-government. This is the second installment in a series on Loper Bright and its consequences. Read the rest of the series as it becomes available here.
In Loper Bright Enterprises v. Raimondo, the Supreme Court avoided a hard question through clever lawyering. Chevron must be discarded, according to the majority, because it conflicts with the Administrative Procedure Act.
While also true, this technical resolution belies the gravity of our national predicament. Today, our form of government exists as a mere shell of its intended design. Fundamental restorative work is required so that “government of the people, by the people, for the people, shall not perish from the earth.” This requires that the people — The People — debate the hard questions and relearn what it means to give consent to be governed.
The hard question lurking behind the Court’s tepid move in Loper is whether the administrative state can make rules at all. I am not the first to suggest that the very fact of rule-making by unelected bureaucrats cannot be squared with our constitutional form. Anyone can see that Article I is the same today as it was in 1946 when the Administrative Procedure Act was born: “all legislative powers herein granted shall be vested in a Congress.” All.
In skipping the hard question, the majority tacitly adopts the reasoning of Justice Kagan’s dissent: Given the complexity of the modern world, she simply assumes that the expertise of the administrative state is both essential and beyond the abilities of The People and their representatives. By implication, anything that impedes its operation is bad. The consent of the governed is one of those impediments.
But even if this reasoning is true, it misses the point. If the choice is between rule by unaccountable experts or the restoration of the consent of the governed, then let us have the national debate. Loper was the Court’s chance to force the issue by abolishing the administrative state, thereby forcing the people to restore it by constitutional amendment or … not to. To be fair, in concurring opinions Justices Thomas and Gorsuch hinted at the larger underlying issue: “Chevron expands agencies’ power beyond the bounds of [the Constitution] by permitting them to exercise powers reserved to another branch of Government.”
Unfortunately, the Court has a recent habit of avoiding hard questions at critical junctures. In Murthy v. Missouri, the Court held that respondents lacked standing to challenge government censorship of social media platforms. In dissent, Justice Alito rebuked the majority for “unjustifiably refus[ing] to address” a “serious threat to the First Amendment” in “the most important free speech case … in years.” Similarly, in Dobbs v. Jackson Women’s Health, the Court declined to consider when personhood begins, electing instead to defer to the states the responsibility for regulating abortions — a decision eerily reminiscent of Stephen Douglas’ defense of popular sovereignty in his 1858 debates with Lincoln.
But the Court’s trepidation is unjustified. We Americans have a history of answering hard questions posed by the Supreme Court. If the Lincoln-Douglas debates represent the finest example of post-ratification national discourse, they owe their status as such to Chief Justice Taney’s decision in Dred Scott. Though odious, Taney did not hesitate to reach weighty conclusions in addition to ruling that the Court lacked jurisdiction: slaves were property, not citizens; the Missouri Compromise was invalid.
In 1857, the Court forced an issue that The People addressed by debate for three years and by force of arms for four. The intellectual and physical cataclysm was worthy of our form of government. By 1865, it had yielded a new birth of freedom.
The Court has a responsibility to address the hard questions head-on. In Loper, Dobbs, and Murthy, it abdicated that responsibility by ruling on technicalities, presumably because it feared The People’s response. But debating substantive questions about the scope of government power and the contours of natural rights is what The People are supposed to do, both as individuals and through their representatives. This is what self-government means.
Instead of weak-kneed technicalities, in Loper the Court should have held that agency rule-making is per se unconstitutional as a delegation of the legislative power given to Congress; in Dobbs that an unborn person is still a person and cannot be denied due process and equal protection; and in Murthy that government censorship of political speech is a flagrant violation of the First Amendment.
Imagine the consequences: serious and hard questions presented in a plain way to The People, who can either accept the Court’s answers or amend the Constitution — that is, exercise the basic responsibility of representative self-government.