The Supreme Court vastly expanded the power of judges at the expense of federal agencies with two rulings this week, and it may be poised to do so again next week.
Taken together, its actions to transfer agency authority to the judiciary could restrict a wide range of financial, environmental, labor and consumer protections.
“It’s just part of an ongoing trend with the federal judiciary, and the Supreme Court in particular, exercising more and more power… at the expense, potentially, of the other branches,” said Don Goodson, deputy director of the Institute for Policy Integrity at the New York University School of Law.
On Friday, the court struck down a legal doctrine known as Chevron deference, which instructed judges to defer to agencies when the law is ambiguous, in a case known as Loper Bright v.
This decision came one day after it ruled that the Securities and Exchange Commission’s (SEC) use of internal administrative courts to hear civil fraud cases was unconstitutional – a move that could have repercussions for other agencies that also use administrative courts.
In a scathing dissent on the Chevron case, Justice Elena Kagan wrote “it is impossible to pretend that today’s decision is unique” in its treatment of agencies, noting that the SEC case also affected them.
“This same Term presents yet another example of the Court’s decision to reverse the agency’s authority,” she added.
Next week, the court is expected to issue a ruling in a third case that could weaken regulatory statutes of limitation and give opponents of a federal lawsuit more time to sue.
“We see a court increasingly skeptical of executive power and administrative power” over the last decade, said Jesse Panuccio, who was acting associate attorney general at the Justice Department during the Trump administration.
“The executive branch has grown enormously in its powers and the scope of its regulation”, he added. “I think the court is saying that if this is where we’re going to end up, we need to rein in some of these presumptions in favor of the agencies.”
But critics of the court’s measures say they could weaken the agencies to the detriment of the country.
James Goodwin, policy director at the Center for Progressive Reform, said the opinions issued last week “are all pointed in the same anti-regulatory direction.”
He said the SEC case “will have a chilling effect on agency enforcement actions,” while the Loper Bright case will have a “similar chilling effect on agencies, but with respect to policymaking.”
The latest case is expected to allow judges to more easily overturn federal agency rules. This increase in judicial power is technically neutral, although liberal critics say the conservative composition of the federal judiciary could, in practice, allow right-wing principles to prevail in many cases.
Goodson said that even before the decision, some agencies may have avoided actions that relied on Chevron for fear that the precedent would be overturned.
“Many people have been treating Chevron as an outcast for several years due to the extreme skepticism coming from members of the court,” he said.
The SEC’s case will apply “whenever federal agencies attempt to impose civil penalties for certain types of violations” such as fraud, requiring such cases to go to the federal judiciary, said Cary Coglianese, a law professor at the University of Pennsylvania.
But he noted that agencies like the Consumer Financial Protection Bureau could also see their cases transferred to federal court — and that the ruling could reach non-financial agencies as well, in cases like the fraudulent submission of environmental reports to the government.
The cases echo an earlier ruling that also curbed the power of federal agencies. In that 2022 ruling, the Supreme Court not only limited how the Environmental Protection Agency (EPA) can regulate climate change, but also codified a legal theory known as the “leading issues doctrine,” which holds that regulations of national importance substantial need to have clear authorization from Congress.
Ann Carlson, an environmental law professor at the University of California, Los Angeles, said this decision will have an even greater impact than more recent ones.
When the leading issues doctrine is applied, “the agency doesn’t even have the power to regulate, let alone regulate in a specific way,” said Carlson, who also recently served at the National Highway Traffic Safety Administration under President Biden. .
Carlson said Friday’s ruling is “another weapon… in an arsenal used to attack the administrative state,” but that she expects the “principal issues doctrine” to have much more impact.
Goodwin, of the Center for Progressive Reform, similarly said he expects important issues to come into play in the larger cases, while the Loper Bright decision could have an impact on cases involving more “middle-of-the-road” rules, such as species protections. threatened.
Panuccio, a former Justice Department official who is now a partner at the law firm Boies Schiller Flexner, said that in the coming years, the court will have the opportunity to go even further in controlling the other branches, seeking to restrict what authorities Congress has. permission. delegate to agencies.
“That’s always a challenge that comes up here and there, which is … is the court willing to revisit what’s called the nondelegation doctrine and put some limits on what Congress allows agencies to do?” he said.
“As long as there are regulated parties and parties that lose a government decision, this is always something that litigants will try…. try to take this issue to court again,” he added.
This story originally appeared on thehill.com read the full story
