Delegitimizing the Administrative State

Focusing on his concurring opinion in West Virginia v EPA, Jenny Breen draws our attention to Justice Gorsuch’s simultaneous enthusiasm for curbing the administrative state and cancelling Woodrow Wilson. It’s hard to believe he’s as genuinely outraged by Wilson’s racism as the Princeton students who sought to get their former president’s name taken off their residential college were. But then it’s also hard to believe that those students – most of whom go into businesses like finance and tech – aren’t already learning how to live comfortably with the prospect of decreased state regulation that West Virginia is offering them. Either way, as Jenny Breen shows, the anti-racist flag is being flown for a deeply anti-democratic cause. —The Editors

In West Virginia v. EPA, the Supreme Court held that the Environmental Protection Agency did not have the authority to enact a plan it had proposed (but never implemented) because the EPA’s actions presented an “extraordinary case” that triggered application of the major questions doctrine.1 That doctrine, in short, asserts that when issues are very important an agency cannot act on them unless Congress explicitly told the agency it could address the issue in the way it planned to act. It should be apparent in that brief description that the major questions doctrine is a powerful tool in limiting the ability of the administrative state to effectively respond to public policy crises. But the immediate outcome in the case—limiting the ability of the EPA to combat climate change—is only one part of the decision’s significance to constitutional government. The decision by the Court and the concurring opinion by Justice Gorsuch make clear that the Court is waging a war on the legitimacy of the administrative state itself.

As Justice Kagan noted in her dissent, Congress often fails to provide specific instructions to agencies with the understanding that Congress itself doesn’t know enough to “regulate sensibly on an issue” or to ensure that the agencies have the flexibility they need “to keep regulatory schemes working across time.” As Kagan drily observes, “Congress usually can’t predict the future,” so delegating the task of implementation—particularly in a highly technical context like power plant emission reductions—to an agency staffed by civil servants who have dedicated their careers to addressing the subject in question, is a decision made by “a rational Congress.”

These critiques of the major question doctrine, however, entirely miss the point for the Court’s conservative majority because they assume that the aspirational goal is a well-functioning democratic government in which Congress makes decisions about policy issues and the agencies carry out those choices. The conservative majority, however, embraces a very different understanding of ideal American governance.

Justice Gorsuch authored a concurring opinion (joined by Justice Alito) that sought to spell out the philosophical and doctrinal foundations of the “major questions doctrine” on which the majority premised its holding. Gorsuch argues that the major questions doctrine “operates to protect foundational constitutional guarantees,” most importantly, the separation of powers. The separation of powers principle is so vital to our constitutional republic, Gorsuch argues, “because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’”2 Gorsuch drives home the importance of democratic lawmaking by observing that “[t]he Constitution, too, placed its trust not in the hands of ‘a few, but [in] a number of hands,’ so that those who make our laws would better reflect the diversity of the people they represent and have an ‘immediate dependence on, and an intimate sympathy with, the people.”

Despite the glaring irony, Gorsuch is not talking about judges when he discusses “unaccountable ‘ministers.’” He is instead talking about civil servants in government agencies. In Gorsuch’s view, government agencies pose unique dangers to the American republic. Accordingly, it is essential that courts—and only courts—be tasked with reining in the power of agencies lest the power they wield—to regulate power plants emissions, to establish health and safety standards during a pandemic—destroy the lives of individual Americans. If agencies are not constrained by the courts, “[i]ntrusions on liberty would not be difficult and rare, but easy and profuse.”

But this premise is hard to swallow because agencies are creatures of statute, meaning they have only the power granted to them by Congress and exist only for the purpose of effectuating some congressionally determined goal. Further, agencies are part of the Executive Branch, the branch of government tasked with executing the laws passed by Congress. In other words, as part of an elected branch of government (unlike the Judiciary), agencies are accountable to voters, albeit in slightly roundabout ways. Gorsuch complains about agencies changing their priorities, but that is the purpose of elections and evidence that agencies are in fact accountable to voters. This very litigation arose in part because of changes in policy priorities between the Obama and Trump administrations. And agencies must undergo a gauntlet of procedural steps to issue what we confusingly call an “informal rule,” because it is in fact a very formal, procedure-laden process that entails a good amount of public input, especially on more controversial and consequential rules (the other name for this type of rule is a “notice-and-comment rule”). Again, those procedures were followed and not at issue in this case.

So where exactly is the democracy deficit here? Why is it more protective of republican government to have unelected judges stop agencies from acting on congressional mandates than it is to let the agencies act on their congressional directives and then either let Congress fulfill its obligation to check out-of-line agencies via legislative oversight or defunding or let the President rein in agencies via his role as head of the Executive Branch? Ironically (again, in a manner totally missed by Gorsuch), this disconnect is most pronounced in the types of cases we call “major questions.” If an issue is truly a subject of great political controversy or will cost a boatload of money, it will already be on the radar of Congress, the President, and the public. In those situations, why wouldn’t Congress or the President be better institutions for reining in power-grabbing agencies in those situations?

The only way the major questions doctrine makes sense—that is, the only way in which it makes sense for unelected judges to be the first line of defense against “a regime administered by a ruling class of largely unaccountable ‘ministers’”—is if you believe that government regulation is necessarily dangerous such that less government is always better. Blake Emerson has accurately described the major questions doctrine as a “one-way deregulatory ratchet.”3 And this is indeed how Gorsuch understands the goal of judicial review of the administrative state. He explains that “[t]he framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty.” The irony of the observation is again lost on Gorsuch, but the fundamental observation is crystal clear: government regulation is a dangerous threat to individual liberty. Less regulation means more liberty.

Further, Gorsuch makes clear that if you don’t share his view on the role of government—that its job is always to regulate less—then you must not actually believe in democracy. Indeed, Gorsuch explains that embracing the administrative state also means rejecting popular sovereignty in favor of an historically elitist and racist alternative to governance.

He makes this remarkable claim by observing that “[f]rom time to time, some have questioned” the idea that elected representatives would make better laws than those “unaccountable ‘ministers’” (not judges) from earlier. That observation is followed by a footnote quoting former President Woodrow Wilson opining in a political science journal (he was a political scientist before he was President) that “‘popular sovereignty’ ‘embarrasse[d]’ the Nation because it made it harder to achieve ‘executive expertness.’” Gorsuch goes on to explain that “in Wilson’s eyes, the mass of the people were ‘selfish, ignorant, timid, stubborn, or foolish,’” that Wilson thought the United States “tr[ied] to do too much by vote,” and that his disdain for the masses was particularly directed at African-Americans and immigrants, while defending the efforts of the “white men of the South” to stop African-Americans from voting.

This lengthy footnote on one of America’s most notoriously racist presidents does not appear in the concurrence to teach a history lesson. Instead, Gorsuch tells us that people who want government to work efficiently are also people who do not believe in democracy—and are also racist, nativist, and elitist. Remarkably, Gorsuch explicitly links the dissenters’ view that “the administrative delegations Congress has made have helped to build a modern Nation” to Wilson’s disdain for democratic governance when he describes the dissent as “[e]choing Woodrow Wilson” on that point.

The Gorsuch concurrence was joined only by Alito, so it does not purport to speak for the majority of the Court. But Gorsuch’s radical view of American governance—that agency action is always a dangerous threat to individual liberty and that those who disagree embrace a racist and elitist version of governance that fundamentally rejects popular sovereignty—is taking hold on the Court, even if not all the justices will spell it out so clearly. Describing his dissenting colleagues as elitist racists is simply the latest tactic in attempting to thoroughly and finally discredit the legitimacy of the administrative state.