The Supreme Court’s Danger-to-Democracy Cases: It’s Not Just About Trump
By Daniel Reich
Today, many believe the fate of American democracy lies in the hands of the Supreme Court. That’s because the high court will likely decide whether Donald Trump can appear on state primary election ballots, despite his efforts to overturn the results of the 2020 presidential election.
But few know that the Supreme Court’s impact on democracy goes well beyond the Trump verdict. In fact, the Court has chosen three cases that could undermine the separation of powers at the heart of our system of government. By seeking to curtail what conservative justices call “the explosive growth of the administrative state,” the high court could dramatically reduce the government’s power to protect our health and welfare.
As you may remember from civics class, American democracy rests on a separation of powers. The legislative branch, which is accountable to the voters, passes laws. The executive branch, led by an elected president, includes agencies that are charged with the day-to-day enforcement and administration of laws. The judicial branch interprets the laws to ensure they are constitutional and that executive agencies do not deviate from the intent of the statutes. Courts within the judicial branch are reviewable by the Supreme Court, but there is no review of a decision by the Supreme Court.
Three recent and forthcoming cases threaten this long-standing separation of powers. In the first case, West Virginia v. EPA, decided in 2022, the Court overturned the EPA’s 2015 Clean Power Plan. In so doing, the high court ignored 40 years of judicial precedent under the “Chevron doctrine,” which calls for deference to the authority of administrative agencies under certain conditions. Here, the question was whether to defer to EPA’s judgment on the “best system of emission reduction” (BSER) to achieve air quality goals.
In the West Virginia case, conservative justices deployed the “major questions” doctrine, which says the Court can overrule executive agencies if their actions have “extraordinary economic and political significance” or lack “clear Congressional authority.” On the Clean Power Plan, this is incorrect on both counts. Even Trump’s EPA acknowledged that the plan did not have extraordinary economic significance, which is why affected industries overwhelmingly supported it. And there was “clear Congressional authority” for the Clean Power Plan: Congress in 1970, 1977 and 1990 passed the Clean Air Act, authorizing EPA — not the courts — to determine BSER for industrial sectors, including the power sector.
The West Virginia case undercut the time-tested system in which Congress sets goals for environmental quality and issue experts at the EPA develop regulations to achieve those goals. In this way, the judicial branch sets the stage for unelected members of the Supreme Court to legislate with no further checks on their power.
The second case, Loper Bright Enterprises v. Raimondo, poses a direct challenge to the Chevron doctrine. This case, which is scheduled for oral argument on Jan. 17, centers on whether a federal agency can require the fishing industry to pay for self-monitoring. It is widely expected that the right wing of the Court will seize this opportunity to strike down the Chevron doctrine. This will be a major blow to the role of EPA and other administrative agencies, establishing the Court as the sole arbiter on how to interpret regulations.
The third case is Securities and Exchange Commission (SEC) v. Jarkesy, for which the Supreme Court has just heard oral argument. The oral argument suggests that the right wing of the Supreme Court may be ready to eliminate the SEC’s authority to bring an administrative enforcement action. The case has the potential to cut out administrative hearing officers and require a jury trial in all enforcement cases. This would dramatically reduce enforcement because most cases are brought administratively due to limited resources and time to bring cases in front of a jury. Again, the high court ignored judicial precedent, which authorized agencies to conduct administrative hearings for actions involving monetary penalties.
The practical implications of this line of cases are dramatic, in my opinion: The EPA will be blocked from regulating significant emissions of greenhouse gases, the Food and Drug Administration will be unable to ban the use of youth-friendly flavored tobacco, the SEC will be unable to ensure that companies inform investors of the risks of climate change, and many other public protections will disappear.
Meanwhile, there is a record lack of public trust of the Supreme Court. The mistrust is fueled in part by the discovery that some conservative justices had their nominations funded with millions of dollars of “dark money” and other donations from the Federalist Society, according to Citizens for Responsibility and Ethics in Washington (CREW). Notably, a single donation to the Federalist Society of $1.6 billion helped further the conservative agenda, including curtailing the power of administrative agencies.
These three cases are not only a direct threat to the power of administrative agencies but go to the heart of the separation of powers on which our democracy rests. By diminishing the power of executive branch agencies to implement goals set by Congress, the Supreme Court usurps Congress’ policymaking role. And it may further undermine the authority of the legislative branch by preventing Congress from deciding when an administrative hearing is appropriate. Instead, the judiciary is making a grab for power that defies the rules of proper legal analysis. Sadly, there are no checks or balances to limit the Supreme Court. We are living with an unelected, life-tenured high court, which may include some justices of questionable integrity. This represents a true danger to our democracy.
Dan Reich was an assistant regional counsel at EPA Region 9 in San Francisco for 27 years. He also served as a trial attorney with the U.S. Department of Justice before retiring in 2017 with 33 years of federal service.
This article was published in collaboration with the Island Press Urban Resilience Project, which is supported by The Kresge Foundation and The JPB Foundation. It was originally published January 12, 2024 on The Messenger.
