Briefly: A Cautionary Note Regarding The SCOTUS

Yesterday I offered a brief quote from an article by law prof Jonathan Turley (I've Been Asked About ... The SCOTUS Mandate Case). Turley discussed the mandate case in the context of two administrative law cases that are before the Court. The reason Turley placed the mandate case in that context is because the Zhou mandate was issued by OSHA—a federal administrative agency—and therefore revolves around constitutional issues governing the law regarding federal administrative agencies. In a broader sense, of course, the fact that the Court already has two cases before it that involve two key aspects of the the law in this field is a very clear indication that the Court will be looking at the mandate through the same or similar lenses that led it to accept those two cases. None of this is likely coincidental—it’s clear that Turley sees all this as connected. He concludes:

The vaccine mandates of the Biden Administration have created a target rich environment for justices who want to curtail Chevron, which will make the Jan. 7 arguments particularly interesting.

Clearly Turley is cautiously optimistic, which leads to the question: Who are these justices who want to clip the wings of the administrative state? This is where I want to sound a cautionary note regarding the SCOTUS—understanding what the Court is up to can be complicated. And I’ll offer this disclaimer right up front: I’m an amateur at this game. However …

I took a fair amount of flack after the election when I several times advanced the hypothesis of a “Roberts strategy.” CJ Roberts, of course, is something of a boogeyman for many conservatives, going back to his infamous Obamacare decision. My point is not now and never has been to defend some of Roberts’ machinations. Rather, what I want is to understand what’s going on.

By contrast with Roberts, Antonin Scalia has attained almost the status of a saint for many conservatives. And yet, readers may recall that I strongly criticized Scalia for his views regarding 18 USC 1001 (False Statements) as well as FISA. The fact is, while Scalia is rightly lauded for many of his decisions—especially on “social” issues—he was not necessarily a friend of limited government. More on that to come.

OK, so back to the question: Who are these justices who are enemies of the Administrative State—or who at least wish to severely limit it? In the past I’ve listed three justices as dead certs for imposing strong limits, curtailing the Chevron doctrine: Thomas, Alito, and Gorsuch. However, I’ve also indicated my belief that Amy and Brett—who seem to side fairly regularly with Roberts—are also likely on board. As is Roberts himself. Brett, in particular, appears to have a track record in this regard, which is promising.

With that background, let’s take a look at an article by Peter J. Wallison about these upcoming cases:

The Supreme Court Confronts the Administrative State

I’m going to provide some excerpts. Note in them the following points, all of which go toward keeping an open mind about things you may have thought you knew for sure. This should also provide grounds for optimism—both short term but also long term—regarding a possible restoration of constitutional sanity to our governing institutions:

1. Scalia, contrary to what you may have expected, was a long time defender of Chevron—and, thus, of the Administrative State. As recently as 2013 Scalia was still defending Chevron.

2. Roberts, by contrast, has for years been a skeptic regarding Chevron. To show you how convoluted coalitions of justices can be on the Court, in that 2013 case there were three justices who dissented from Scalia’s defense of Chevron: Alito, Kennedy, and Roberts.

3. While Chevron is obviously key, there is another central constitutional principle involved. That’s why the Roberts Court has taken two cases, and not just one. This could be an example of the good side of Roberts’ famous cautious approach. Each of the two cases appear to provide a focus on related by separate issues regarding the Administrative State—offering a potential one-two combination.

4. Perhaps I’m overly optimistic? You be the judge.

With those preliminaries out of the way, we turn to Wallison:

It could be a coincidence—or it could foretell an historic Supreme Court term. The Court has now accepted two cases for this term that could threaten the essential legal underpinnings of the federal administrative state.

But I doubt that this is a coincidence. These cases were taken for a purpose. If the justices were satisfied with the state of affairs regarding the Administrative State they could simply have let matters stand—declined to take these cases on. The law had seemed established enough that clarification wouldn’t have been needed. Or so one would think.

Now, pay attention to the description of the Chevron doctrine, which has been in place since 1984:

The first is American Hospital Association v. Becerra, in which the plaintiff questions the Chevron doctrine—a rule fashioned by the Supreme Court itself in 1984 that requires lower federal courts to defer to administrative agencies’ interpretation of their delegated authorities, where the statute is ambiguous and the agency’s decision is “reasonable.” Under this rubric, lower federal courts have given administrative agencies wide leeway to interpret the scope of their authority.

So, on the one hand, more conservative judges in the lower courts have largely had their hands tied, while liberal judges have been able to run wild in terms of enabling the advance of the Administrative State, with little in the way of challenges.

But there’s a second big issue:

The second case, which has received less attention, is West Virginia v. Environmental Protection Agency, in which the state is challenging EPA’s authority to impose restrictions on the emission of greenhouse gases under the Clean Air Act. West Virginia has a number of objections to the EPA’s actions, but one of them raises a constitutional issue known as the nondelegation doctrine, which was last invoked by the Supreme Court in 1935. This holds that under the Constitution’s separation of powers, Congress may not delegate any of its legislative authority to agencies of the executive branch. Accordingly, if Congress gave so much discretion to the EPA in the Clean Air Act that the agency could create what was in effect a new law—without congressional authorization—the Act would violate the nondelegation doctrine.

Thus, while Chevron has largely been used to expand the authorities of administrative agencies over time—with the courts providing generous readings for agencies’ claims of authority under ambiguous laws—the nondelegation doctrine has the potential to narrow the range of administrative activity by requiring Congress to enact more tightly drawn legislation. If the Court should weaken or eliminate Chevron, and re-invigorate the nondelegation doctrine, it would mean—in a single term—a significant narrowing of administrative state authority and an historic shift in the Court’s jurisprudence away from precedents initially established in and after the New Deal.

That would be a very big deal in terms of constitutional law. And yet, this wouldn’t be entirely a bolt out of the blue:

Prior cases have laid the groundwork for changing the Court’s view of both doctrines.

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The first serious crack in the Chevron wall came in the 2013 case City of Arlington v. FCC. There, Chief Justice Roberts, together with Justices Alito and Kennedy, dissented from a majority opinion in support of Chevron written by Justice Scalia.

Be honest, now. How many of you thought you’d ever be cheering for Kennedy and Roberts against Scalia? Life can be weird—especially on the SCOTUS.

This in itself was a major change in the Court’s attitude toward Chevron, but it was followed in 2015 by Perez v. Mortgage Bankers Association, in which Justice Scalia—long the Court’s strongest supporter of Chevron—formally recognized that the Administrative Procedure Act (APA) requires the reviewing court—and not the administrative agency—to interpret the meaning of a statute. In other words, the courts, and not the agencies, are the final arbiters of an agency’s authority. As the Chief Justice said in City of Arlington, “We do not leave it to the agency to decide when it is in charge.”

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What the Court says this term on either Chevron or the nondelegation doctrine, or both, could reverberate for years to come when courts consider the scope of statutes that confer authority on the agencies of the administrative state.

This should also suggest the importance of the Trump administration’s focus on getting appellate level judges in place. We’re already seeing the fruits of the shift that that process has brought about. If the SCOTUS clips the wings of the Administrative State—as well as, by implication, of the liberal legislators providing the loopholes for the bureaucrats—the results could truly “reverberate” for years to come.