As we embark on the new Supreme Court term, it’s clear that the battle against the unaccountable administrative state is at the forefront. While this term may not feature the headline-grabbing social issues like affirmative action and abortion, it will be marked by cases that delve into the constitutional balance of power and the future of the administrative state.
One prevailing theme in the cases on the docket is the constitutional separation of powers. The Constitution divides the federal government into three branches – the legislative, executive, and judicial – and explicitly prevents each from wielding powers designated for the others. However, this separation has come under serious threat over the years.
The administrative state, built by Congress over generations, has created a web of alphabet soup agencies with legislative and judicial powers that the Constitution originally reserved for other branches. The problem with this setup is that these bureaucrats hold immense power over our lives, yet they remain unaccountable to the American people.
Take, for instance, the Consumer Financial Protection Bureau (CFPB), championed by Senator Elizabeth Warren. The CFPB is funded by the Federal Reserve and has the authority to determine its annual public funding indefinitely, bypassing the Constitution’s appropriations clause, which requires congressional approval for spending. This case, Consumer Financial Protection Bureau v. Community Services Association of America, challenges the funding mechanism of the CFPB, questioning the erosion of congressional oversight.
The case Securities and Exchange Commission v. Jarkesy deals with agencies prosecuting enforcement actions within their own tribunals, staffed by agency employees known as administrative law judges (ALJs), rather than in court. The concern is that these ALJs overwhelmingly rule in favor of the agency, depriving individuals of their right to a trial by jury. It also raises questions about whether Congress has improperly delegated excessive authority to these agencies.
Another critical case, Loper Bright Enterprises v. Raimondo, seeks to overrule the infamous Chevron v. Natural Resources Defense Council decision, which allowed courts to defer to “reasonable” agency interpretations of ambiguous statutory text. Over time, this deference enabled agencies to stretch their powers beyond the original intent of Congress. The court’s reconsideration of Chevron could bring more clarity and accountability to regulatory actions.
While the court may not address every issue before it, these cases collectively represent a multi-front challenge to the unaccountable administrative state. As we see wealth tax proposals gaining traction in national debates, the outcome of Moore v. United States, which questions the constitutionality of the Mandatory Repatriation Tax, becomes crucial.
As we enter this term, it’s essential to acknowledge the challenges faced by the Supreme Court and the growing hostility directed towards its members. These challenges range from intimidation to destructive legislative proposals. Nevertheless, the court’s commitment to upholding constitutional principles provides hope for a more perfect union, where the rule of law and the Constitution prevail.
