The United States could well be on the precipice of a dramatic reshaping of its laws and regulations, by the six partisan judges who now control the Supreme Court. And we’re not talking about the court’s expected repeal or weakening of the precedent set by the Roe v. Wade decision.
The high court’s conservative majority has signaled its intent to roll back 100 years of legal precedent that could affect everything from the quality of the food we eat to the safety of our workplaces, to the quality of the air we breathe.
At issue is Congress’s longstanding practice of delegating the drafting of federal rules and regulations to federal agencies. For decades, Congress has passed laws that were goal oriented, setting broad objectives for improving some aspect of American life. Whether it was air and water quality, or the safety of pajamas for kids, Congress wrote laws that expressed a desired outcome, while recognizing that Congress lacked the practical ability and expertise to develop the fine print on how to get there.
That work was left to federal agencies, which were expected to employ individuals knowledgeable in various subjects to develop federal rules and regulations through which the executive branch would interpret and enforce the laws that Congress wrote. Since 1946, the process for doing that has been spelled out in the Administrative Procedures Act.
Conservatives had no qualms about this process back when the national political landscape was more favorable to Republicans. But after eight years of President Obama, and after considering that the Republican nominee has won a majority of the presidential vote only once in the past 33 years, conservatives have looked to the Supreme Court as the best way to win the big political arguments they haven’t been able to win at the ballot box. To do so, they are looking to an old legal theory that says Congress can’t delegate its authority to another branch of government. Under this dubious theory, virtually the entire edifice of the federal regulatory system could be dismantled, piece by piece, as unconstitutional.
It’s no secret that conservatives are gunning for what they term “the administrative state,” arguing that federal regulations should not be drafted by what they call “unaccountable bureaucrats.” It’s a popular sound bite these days among conservatives. It is, also, complete nonsense.
For one, the bureaucrats who have drafted federal regulations for decades are hardly unaccountable. The promulgation of new rules and regulations must be clearly responsive to congressionally enacted laws. Based on the Administrative Procedures Act, they must go through an exhaustive public comment process before they are enacted. At any point in the process, Congress can call those “unaccountable” bureaucrats before a congressional committee for a good grilling, or pass a new law if they don’t like the regulations developed by the agencies. And, as always, the courts have the opportunity to review any new regulations should they be challenged, and such challenges are routine.
Anyone who suggests the current system is “unaccountable” had better consult an English dictionary for the definition of the term.
Unaccountable would better describe the Supreme Court majority’s plan to replace rule-making by federal agencies, with rule-making by conservative activist judges with lifetime appointments, who answer to no one.
While most federal judges are highly intelligent, no one expects them to be specialists in every possible subject matter. The various federal agencies deal with an almost unimaginable array of complex issues and they rely on the thousands of experts they employ to make sense of it all. That’s why, for decades, courts have generally deferred to the expertise deployed by the agencies subject to their review, unless they determine that statutory language is ambiguous or that the agency action was arbitrary.
Unfortunately, the current Supreme Court majority has a political agenda that centers around dismantling regulations designed to protect the public from the predatory impulses of market power and wealth. Citizens United, which all but dismantled controls on money in politics, was just the opening salvo. Now, with a 6-3 Republican majority on the court, regulations on clean air, clean water, food and workplace safety, voting rights, consumer protection, and a long list of other regulatory systems designed to protect the public and the environment, could soon be dismantled, leaving powerful special interests with the freedom to run roughshod over just about everything that protects the average American.
One thing’s for sure. It’s going to be a bumpy ride.
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