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As the Biden administration sets out to restore a government that can regulate business to level the playing field in the United States between workers and employers, address inequality, and combat climate change, Republicans are turning to the courts to stop him.
Republican attorneys general have already launched a number of lawsuits challenging the new administration’s policies. Twenty-one states are suing Biden for revoking the permit for the Keystone XL pipeline to cross the border from Canada. They claim such authority belongs to Congress because it has the authority to regulate interstate and foreign commerce. Biden cancelled the permit because he said it was not in the national interest, and legal experts say he is on solid ground.
Twelve states are suing the president over his executive order to address climate change because they say that Biden has no authority to regulate “’social costs’ of greenhouse gases.” Missouri Attorney General Eric Schmitt, who is considering running for the Senate and who is leading the lawsuits, says such regulations will be expensive and ordinary Americans will bear the higher costs on everyday products. Missouri legislators are talking about blocking any of Biden’s executive orders with which they disagree.
Eleven states are challenging Biden’s immigration policy: they want to reinstate the rule that requires applicants for citizenship to prove they are financially secure before they are allowed to become citizens.
And twenty-two Republican states are suing to challenge the provision of the American Rescue Plan that says states cannot use the federal money, which is intended to stimulate the economy, to cut taxes. Democrats added this provision deliberately to prevent Republican legislatures from using the money to cut taxes rather than as it was intended. States have the option to turn down the funds, but if they take the money, they must use it as Congress intended: to fund public programs.
Former President Trump and then-Senate Majority Leader Mitch McConnell (R-KY)—who was known for saying “Leave no vacancy behind”—made it their top priority to reshape the federal judiciary. McConnell stalled confirmations for Trump’s predecessor, President Barack Obama, leaving a number of vacancies for Trump to fill. McConnell approved the new judges with vigor, keeping the Senate confirming them during the pandemic, for example, even when all other business stopped.
Most notably, of course, Trump appointed three justices to the Supreme Court. McConnell refused to hold hearings for Obama’s nominee Merrick Garland, now Biden’s Attorney General, saying that his nomination in March 2016 was too close to the November presidential election to permit an appointment. This obstruction created an opening for Trump’s first nominee to the Supreme Court, Neil Gorsuch. When Justice Anthony Kennedy retired in 2018, Trump replaced him with Brett Kavanaugh. Then, when Justice Ruth Bader Ginsburg passed, Trump replaced her with Amy Coney Barrett less than two weeks before the November 2020 election.
The importance of those appointments is about to start playing out.
This week, the Supreme Court heard arguments in Cedar Point Nursery v. Hassid, a somewhat confusing case about the rights of workers. The case is about whether union organizers can talk to farm workers in their workplaces when they are not working. The 1975 law that permits such conversations has enabled agricultural workers, who are mostly people of color and immigrants, to bargain for better conditions. But in Cedar Point Nursery v. Hassid, companies argue that the regulation permitting organizers into workspaces deprives the property owner of economic benefit and thus is unconstitutional.
If the Supreme Court agrees, the precedent will go a long way towards striking down regulations that involve intruding on private property—like workplace safety inspections—that are currently allowed and presumed to be in the public interest. That the Supreme Court agreed to hear this case suggests it is open to the argument.
For years now, the Court has hemmed in Congress’s ability to use the Constitution’s Commerce Clause to regulate aspects of American life. Since the 1930s, Congress has expanded the use of that clause to regulate anything that has a substantial effect on interstate commerce. Recently, the Supreme Court has challenged that sweeping argument, saying it cannot be used to regulate guns in schools, for example, or to require individuals to buy health insurance.
Most dramatic, though, is the Court’s apparent willingness to revisit something called the “non-delegation doctrine.” According to Julian Davis Mortenson and Nicholas Bagley, authors of a new piece in the Columbia Law Review, non-delegation was invented in 1935 to undercut the business regulations contained in the New Deal. In the first 100 days of his term, President Franklin Delano Roosevelt set out to regulate the economy to combat the Great Depression. Under his leadership, Congress established a number of new agencies to regulate everything from banking to agricultural production.
While the new rules were hugely popular among ordinary Americans, they infuriated business leaders. The Supreme Court stepped in and, in two decisions, ruled that Congress could not delegate its authority to administrative agencies. But FDR’s threat to increase the size of the Court, and the Justices’ recognition that they were on the wrong side of public opinion, undercut their willingness to oppose the New Deal. The non-delegation theory was ignored until the 1980s, when conservative lawyers began to look for ways to rein in the federal government.
In 2001, the Supreme Court unanimously rejected the argument in a decision written by Justice Antonin Scalia, who argued the Court must trust Congress to take care of its own power. After Justice Clarence Thomas suggested that he too might be open to this argument, conservative scholars began to say that the framers of the Constitution did not want Congress to delegate authority. Mortenson and Bagley say that argument “can’t stand… It’s just making stuff up and calling it constitutional law.” Nonetheless, Republican appointees on the court have come to embrace the doctrine.
In November 2019, the same day that then-Senate Majority Leader McConnell boasted on Twitter that the Senate had confirmed more than 160 new federal judges since Trump took office (one out of every four) and would continue to confirm them as fast as possible, Justice Kavanaugh sided with Justice Gorsuch—Trump appointees both— to say the Court should reexamine whether or not Congress can delegate authority to administrative agencies. Along with Chief Justice John Roberts and Justice Thomas, they make the claim that the Constitution forbids such delegation. If Justice Barrett sides with them, the resurrection of that doctrine will curtail the modern administrative state that since the 1930s has regulated business, provided a basic social safety net, and promoted infrastructure.
As Justice Elena Kagan points out, the nondelegation doctrine would mean that “most of Government is unconstitutional.”
But that, of course, is the point. We are caught up in a struggle between two ideologies: one saying that the government has a significant role to play in keeping the playing field level in the American economy and society, and the other saying it does not.
Heather Cox Richardson is a Professor of History at Boston College. This post originally appeared on her Substack, Letters from an American.