WASHINGTON, District of Columbia — As the political will to significantly curtail the administrative state increases among conservatives, questions remain as to how the Supreme Court will respond to such efforts.
Reining in the power of unelected bureaucrats is not merely an endeavor of the executive or legislative branches focused on funding departments or firing employees who are clearly acting in ways antithetical to the policy goals of the president.
The president’s power to fire career employees at-will, deferential treatment of executive branch departments, and the delegation of power from the legislative branch to executive departments are all bound by Supreme Court precedent that would need reversal in order for a new president to make significant change in the way of an executive branch overhaul.
Indeed, a “Schedule F” solution to allow the president to fire policy-oriented career employees would clearly be met with lawsuits challenging the president’s authority to do so, and past precedent appears either unfavorable or unclear as to the answer to that question.
At the Federalist Society’s 2022 National Lawyers Convention, a meeting of mostly conservative lawyers from across the country, many members speaking to Breitbart News were optimistic about the current Supreme Court’s will to address these issues but were concerned with the speed at which it might be willing to do so.
Although there is a 6–3 conservative majority on the Supreme Court, justices have differing viewpoints on the issue.
While Justice Brett Kavanaugh appears extremely skeptical of the administrative state and is stalwart in his resolve to move power from executive branch bureaucracies back to political appointees and Congress, Chief Justice John Roberts, as with many issues, may be more incrementalist.
One member of the Federalist Society surmised, however, that if questions regarding the curtailment of the administrative state are being decided on a 5–4 basis — with Roberts in the minority — it will make him “look impotent as a Chief Justice.”
In one convention panel, titled “Render Law Unto Congress and Execution Unto the Executive: The Supreme Court Rebalances Constitutional Power,” questions surrounding administrative state reform and the respective powers of Congress and the president were discussed.
Current Supreme Court precedent, grounded in the 1935 case Humphrey’s Executor v. United States, “holds that Congress can protect principal officers against removal, but only if the officers are part of multi-member commissions,” panelist and Yale Law professor Nicholas Parrillo said.
The president does, however, have the power to remove commissioned officers at-will who he appointed and were confirmed by the Senate.
Multi-member commissions — such as the Federal Trade Commission (FTC), Federal Communications Commission (FCC), Securities and Exchange Commission (SEC), and the Federal Reserve (Fed) — are a major part of the issue because while they are often designed to be either nonpartisan or bipartisan, they can act in very partisan ways depending on the panel’s membership.
These commissions can also have overwhelming power to affect public policy and the lives of Americans without being ultimately accountable the citizenry or — because of Humphrey’s Executor — the elected president.
Another related question going into a new Republican administration with an eye toward administrative state reform will be whether the president can terminate career officers in executive departments — such as the Departments of Justice or Education — which have overwhelming power to affect public policy but are currently protected by civil service guarantees and unions.
The Court in June began to diminish an agency’s claim to regulatory power in West Virginia v. Environmental Protection Agency when it reevaluated the “major questions doctrine.”
The doctrine involves “both separation of powers principles and a practical understanding of legislative intent,” and it requires Congress to be explicit in its authorizations for agencies to make “decisions of vast economic and political significance.”
In West Virginia, Roberts, writing for the majority, described the doctrine as a “reluctan[ce] to read into ambiguous statutory text.”
Parrillo described the new precedent as a “presumption against the agency” asserting a power to regulate that is not explicit in its enabling statute.
“The Court simply asks, ‘Can the agency point to a clear statutory authorization for this power?’ If it cannot, the government loses,” Parrillo continued.
The conservative majority in West Virginia appears to differ on how far to go in curtailing the power of agencies, with some justices bringing up the “nondelegation doctrine” — the idea that one branch of government cannot grant its own power to another.
Nondelegation cuts at the primary question of the administrative state and how it has functioned historically: Has Congress ceded its own legislative power to the executive branch, and is that unconstitutional?
The doctrine, described by some at the conference as “weak,” is technically part of Supreme Court precedent but has only been invoked one time resulting in the striking down of legislation.
Some on the Court appear partial to strengthening the doctrine.
Justice Neil Gorsuch wrote separately in West Virginia arguing that the major questions doctrine is supposed to help the nondelegation doctrine, but Parrillo explained how Gorsuch’s view still leaves questions unanswered.
“Gorsuch’s version of nondelegation would block agency rules governing private conduct unless they fell into certain exceptions, like rules turning on fact findings and not policy judgments, or rules that fill up the details rather than decide important subjects or make policy,” the professor said. “But these exceptions seem quite indeterminate and malleable, especially the exception for any rule that fills up the details.”
“Gorsuch said that something could be highly consequential and yet still be a detail,” Parrillo continued, asking, “By what principle can a detail be defined?”
Other conservative justices have differing views.
The late Justice Antonin Scalia believed that the judiciary was not able to enforce nondelegation because it involved a question of degree of power delegated, not an explicit principle that could be followed.
Justice Clarence Thomas, on the other hand, argued in favor of the judgements of degree of which Scalia was skeptical, saying that agency rulemaking governing domestic private conduct was unconstitutional unless it turned into a factual determination with no exception for details.
Panelist and former U.S. Court of Appeals judge, Hon. Thomas Griffith, pointed out that many of the questions that remain before the Court are ones that call “into question the entire structure of the modern administrative state.”
Griffith recalled a lawyer defending the government making that remark to D.C. appeals court Chief Judge Douglas Ginsburg, to which Ginsburg replied, “so much to do, so little time to do it.”
Many conservatives argue that questioning the functionality, and therefore constitutionality, of the administrative state is central to the endeavor to reform the executive branch.
Griffith said the central question for pro-reform persons is, “Do we favor the project of the Roberts Court to establish guardrails that keep the executive legislative and judicial powers in their own lanes?” — a project he nonetheless characterized as “incrementalist” and “faint-hearted.”
The judge, who has previously argued as a lawyer in favor of administrative state protections and deference, said on the panel, “I have come to distrust ingenuity and imagination and tinkering — the guardrails are important to keep constitutional players in their lanes.”
“That’s the great unspoken question: What do we do with Humphreys Executor?” he continued. “Humphreys Executor should not be a bar to the President having vigorous removal power.”
In terms of nondelegation, Griffith believes Congress’s current significant delegation of authority to the executive branch is grounded in political considerations from members of Congress.
“We’re dealing with is broad delegations of authority by Congress to avoid electoral responsibility,” he said.
Taking a pro-administrative state view, panelist and New York University law professor, Hon. Sally Katzen, channeled Wilsonian thinking on the need for a robust bureaucracy, calling attempts by the Court to dismantle or diminish the power of executive agencies “regrettably misguided” and “not sustainable in this day and age.”
She also rejected originalist thinking, citing the failed precursor to the Constitution, the Articles of Confederation, calling the Constitution a “do over,” asking, “Does that mean that we still think of the Constitution as having been chiseled in marble for all ages?”
More to the point, it is the modern function — or dysfunction — of the legislative branch that, to Katzen, makes a robust administrative state so essential.
After describing several differences between 1789 and 2022, the professor asked, “So where are we now? The most powerful branch in 1789 cannot today even debate, let alone decide the pressing questions of the day.”
“So, Congress can name post offices, but it has the hardest time even passing a budget each year to keep the government open,” she said. “And while it can spend money and lower taxes through reconciliation, it can do very little of a substantive nature to address the pressing problems that confront this nation.”
“[Congress] is the institution that the Supreme Court majority says is the only institution to make laws to anticipate technological, scientific, or engineering breakthroughs or calamities and give its blessing in advance to specific solutions,” she continued. “That’s a lot to ask from an institution that’s barely functional.”
Katzen was also quite wary of giving the president more power to fire executive branch employees, appearing to diminish the amount of power career employees can have over public policy and the function of their respective departments.
“So, the most powerful person on the planet is somehow too constrained in this day and age unless he can remove an administrative law judge and an independent regulatory commission … or maybe be able to remove a civil servant who has contributed to the development, interpretation, or advocacy of any policy,” she said, mentioning Schedule F and a concern of returning to the “spoils system” where the executive branch is staffed entirely by friends and supporters of the president.
In response to Katzen’s assertions, Griffith responded that the curtailment of the administrative state was not a project intent on destroying it, but rather making it “politically accountable.”
To Griffith, the modern administrative state was created “to move it away from political accountability.”
“It’s a Wilsonian dissatisfaction with the Constitution that was created in 1789 and is born of an idea that the world is too complicated now, that we need to move away from political accountability,” he continued.
Woodrow Wilson had a significant impact on the purpose and function of the modern administrative state, believing that the representative, politically accountable branches of government were essentially obsolete and could be replaced by an expert class of administrators who both possessed the benevolence and the intellectual capacity to always make proper decisions.
Reform of the administrative state is something Republican politicians have talked about for years, but have always either not addressed or run into institutional roadblocks in their attempts at reform.
Much has been made about a Schedule F solution and staffing a new administration for 2025, on the assumption that employees could be removed by the president and replaced with political appointees.
Although the Court appears sympathetic to reform, questions remain on how quickly they will allow reform and to what degree they will allow it.
Breccan F. Thies is a reporter for Breitbart News. You can follow him on Twitter @BreccanFThies.
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