The Supreme Court’s Revolutionary Change to the Separation of Powers

THE SUPREME COURT’S REVOLUTIONARY CHANGE TO THE SEPARATION OF POWERS

In the last month of its recently concluded term, the Supreme Court fundamentally altered our republic’s separation of powers in a way that can fairly be described as revolutionary.  That is a strong word, and I do not use it lightly.  The Court has upended very settled expectations about how our federal government is supposed to operate, in Loper, Jarkesy and the Trump immunity ruling.

We all know the elementary school version of the separation of powers.  Three branches of government, with distributed authority and checks and balances.  That over-simplified view failed to take account of the development of the administrative state, which started well over a century ago, and the more recent failure of a deadlocked Congress to do anything meaningful at all.  They can’t pass a budget, much less real legislation. 

Into that mix comes the Loper case, a fishing regulation case that reversed the Chevron deference doctrine, pursuant to which courts had previously deferred to the judgment of administrative agencies acting reasonably within the scope of the discretion Congress gave them.  Who benefits from this reversal?  Clearly the judiciary, which has claimed for itself more authority to interpret broad regulatory statutes, even where judges and justices lack the necessary scientific and technical expertise such as under our environmental laws.  Also the President, because if the administrative agencies are circumscribed then the rest of the executive branch is empowered.  Theoretically Congress too, as it can pass bills, but experience has shown that won’t happen.

Let’s layer on top of that Jarkesy, which held that SEC enforcement cases seeking fines, as almost all do, have to be brought in the District Court because the defendants have a Seventh Amendment common law right to a jury trial.  I won’t go on a tangent here of describing why I think that decision was wrong; if you’re interested in that read other commentators about the decision.  What I will say here is that the decision has the potential to upend the work of almost all administrative agencies.  Who benefits?  Again, the judiciary which has to try all the cases, and the President who gets to fill the vacuum that is created by taking away administrative agency air. 

And then there’s the Trump immunity ruling.  I blogged about that decision the day after the ruling came down, because I considered it so wrong and poorly reasoned.  Relevant to this post are less the deficiencies in its reasoning and more its practical effect.  Granting a President full immunity from almost all criminal, as well as civil, actions, can only embolden future Presidents to seize power and take bold action.  Indeed, that is the very purpose of the ruling.  While that prospect is scary enough in the short run, if former President Trump wins the election, in the longer term (assuming Trump either loses or gives up the office voluntarily in four years!) the immunity ruling can only dramatically expand presidential and executive power and prerogative for future Presidents.  Loper and Jarkesy will have the effect of creating much more room for that power to be exercised.  Nature abhors a vacuum. 

Sure, Congress could absorb some of the slack.  But we know they won’t. It will be the President and the courts.

This fundamental reallocation of responsibility and authority within the federal government was anything but inevitable.  The Federalist Society has long criticized the powers of administrative agencies as undemocratic.  But they never mentioned the Congressional Review Act, which gives Congress the power to reverse agency action.  Why isn’t that an adequate check?  A system of administrative action, utilizing broad grants of discretion given to agencies by Congress under broadly defined statutes, subject to Congressional review, with the judiciary policing the procedures under the Administrative Procedures Act, is a logical and consistent system.  It used to be the system we had.  No more.  Now the President and the courts, ultimately the Supreme Court, reign supreme.  I use the word “reign” deliberately. 

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