No, the Supreme Court Cannot Save Democracy | The Regulatory Review

Equity’s existence partly is and partly is not intended by the legislators; not intended where they have noticed no defect in the law; intended where they find themselves unable to define things exactly, and are obligated to legislate as if the that held good always  which in fact only holds good usually.

Aristotle - Rhetoric Book I, para 13  [384-322 B.C.]

The Supreme Court by deploying two closely related "doctrines" - major questions and non-delegation - is piece by piece disabling the regulatory state.  Its claim - we are returning power to the electorate - by forcing Congress to legislate more specifically.  In fact that high-minded stance is a judicial veto.  The  conservatives on the Court know as well as anyone that Congress is a gridlocked body.  

The "filibuster" blocks its ability to close debate on "major questions".   Thus the Court is able to block a regulation aiding public health (the OSHA vaccine mandate) while allowing Trump to effectively close the southern border to asylum claimants contrary to Congress's mandate in the asylum act.

Contrary to its claims to be acceding to the electorate, in both cases it knows that the consequences will be to advance the conservative agenda. - GWC

No, the Supreme Court Cannot Save Democracy | The Regulatory Review

By Daniel E. Walters (Penn State)

The Supreme Court is forcing a deregulatory agenda under the guise of restoring democracy.

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The U.S. Supreme Court wants the public to believe that it has democracy’s back.

This is the unmistakable message from a series of recent decisions invalidating federal government actions, such as the vaccine-or-test mandate, that aimed to protect the public from serious threats to safety and health. The Court’s decision in the latest of these cases, West Virginia v. Environmental Protection Agency, presently pending before the Court and expected later this term, will almost certainly employ the same logic to bar the U.S. Environmental Protection Agency (EPA) from addressing climate change using language in the Clean Air Act. In these cases, the justices have suggested that, in constraining the powers exercised by federal regulators, they are doing nothing less than restoring the United States’s democratic promise.

But the claim that the Court’s conservatives are saving democracy is nothing more than a ploy to brand their idiosyncratic, antiregulatory substantive goals with the universally appealing ideals of revitalizing democracy. In reality, the available empirical evidence goes flatly against the idea that the Court can meaningfully improve the functioning of democracy through these kinds of decisions. My own recent work provides yet more reason to doubt that the Court can deliver on its promise. Especially in light of the Court’s cynical attempt to flip the script on critics who have rightfully pointed out the clear anti-democratic tendencies of the Court’s decisions on voting rights, gerrymandering, campaign finance, and unions, U.S. residents should not fall for it.

The unelected justices’ recent claims that they are defending democracy when they invalidate regulatory actions that a majority of the public supports might understandably be met with raised eyebrows. But the Court is invoking a long line of influential thinking in the legal world about supposed dysfunctions in how the U.S. Congress delegates legislative power to executive branch agencies. According to some of the justices, agencies such as EPA, the Occupational Safety and Health Administration, and U.S. Food and Drug Administration exercise too much power that Congress should exercise itself. The critics argue that allowing Congress to pass the buck to agencies through broad delegations that do not in themselves resolve hard questions allows Congress to evade democratic accountability for decisions that agencies ultimately make.

The conservative majority on the Court is staking out a bold claim based on these arguments: It alone can restore functionality to Congress by forcing Congress to do the hard work of legislating, rather than allowing Congress to continue passing that task on to agencies who are allegedly less accountable to voters.

The vehicle the Court is using in this campaign is the so-called major questions doctrine, which is effectively the handmaiden of a more overtly radical nondelegation doctrine used only in 1935 to strike down New Deal legislation. The contemporary major questions doctrine wrests decisions of great economic and political significance from administrative agencies acting under existing statutes and kicks them instead to Congress to authorize action in new, more specific legislation. In a recent case invalidating the Biden Administration’s extension of the COVID-19 eviction moratorium, the Court stated that it “expects Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” If Congress has not spoken clearly enough for the Court, then the result is that nothing happens until Congress can regroup and pass a new law.

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