Loper Bright v. Raimondo and Relentless v. Department of Commerce both involve bizarre fishing rules
After consecutive Supreme Court terms with major rulings on abortion, guns and affirmative action, the justices don’t have anything on the docket now that will roil the culture wars. (The Trump ballot case to be argued as this goes to press will be a small blip.) Instead, this year our black-robed philosopher-kings are doing battle with the administrative state — which Steve Bannon promised to “deconstruct” when Donald Trump took office last go-round.
That shouldn’t be surprising; notwithstanding the media trope that Trump “stacked the court” to overrule Roe v. Wade, it was instead potential nominees’ commitments to reining in the bureaucracy that was White House counsel Don McGahn’s focus. Neil Gorsuch and Brett Kavanaugh both made names for themselves fighting jurisprudential doctrines that put a thumb on the scale for the government in all its regulatory glory. And, of course, for interpreting legal text for its original public meaning rather than trying to divine some results-oriented legislative purpose. Amy Coney Barrett wasn’t a judge for long, but her opinions and academic writings put her very much in the mold of her mentor, Justice Antonin Scalia, who by the end of his life had also become quite skeptical of bureaucratic transmogrifications of congressional lawmaking. Parsing the arcane statutes and complex regulations that govern executive-branch agencies was once a rather sleepy, and very technical, area of law. But as people have come to realize it’s these agencies, rather than a grandstanding Congress, that increasingly make the laws that govern our lives, administrative law has come to the fore. As the Supreme Court has turned back expansive pen-and-phone schemes that range from “clean power” plans to vaccine mandates and student loan cancellation, you don’t have to own multiple green eyeshades to see that these lawyerly debates over agency power are a big deal.
Continue reading the entire piece here at The Spectator (paywall)
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Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.
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