How this Supreme Court term could rein in bureaucracy in the US 

On Monday, Oct. 2, the United States Supreme Court began its new term, addressing several pressing cases with one common theme: the authority of federal agencies.  

This theme might seem far from the concerns of regular Americans, but it touches on our political system’s most fundamental principles. Taken together, these cases could do much to push our system back toward adhering to those principles. 

Between now and late June, the justices will address a variety of cases that raise the question of who exercises ultimate political authority in America. The Constitution’s Preamble begins with “We, the People.” Thus, we are not ruled by one strongman nor by a small group of elites. Instead, we believe in human equality and that such equality demands that final political power resides in the citizens of this country as a whole. 

In Loper Bright Enterprises v. Raimondo, the court will re-examine the extent of judicial deference to bureaucrats in interpreting federal law, known as the “Chevron deference.” This doctrine, so-called for the 1984 case Chevron U.S.A. v. NDRC, gave federal agencies extensive leeway in interpreting ambiguously written laws. As things currently stand, bureaucrats use this deference essentially to write their own laws. Congress has been complicit in this practice, passing vague statutes that try to leave much actual legislation to the agencies. The court has chipped away at that deference and now will consider whether to overturn Chevron entirely. 

Overturning this precedent would be a big step back toward government by the people. In our constitutional system, the people’s sovereign rule comes through lawmaking as done by Congress. Giving away that power, or seizure of it by any other entity, violates our republican form of government. 

Another case involving the same fundamental issue is Consumer Financial Protection Bureau v. Community Financial Services Association. There, the court will take up whether the Consumer Financial Protection Bureau funding outside the normal congressional appropriations process violates the congressional “power of the purse.” Congress set up this distinct funding system to try and ensure the agency’s independence — but Congress is supposed to control how the rest of the government is funded. The power of the purse is essential to controlling the exercise of governmental power because government’s activities involve the expenditure of tax dollars. Thus, congressional control of agency budgets is crucial to how the people maintain their sovereign authority. It is essential to sustaining our republican form of government. 

Another case with far-reaching implications is SEC v. Jarksey, which focuses on what are called administrative law judges. This case underscores two vital principles, one of which is constitutional separation of powers. Administrative judges act as in-house judiciaries within the agencies to adjudicate disputes about bureaucratic regulations and actions. Should these proceedings take place in the Article III judicial branch instead? The Founders believed all political power manifested as either legislative, executive or judicial functions. They further argued that these functions should be dispersed between three independent institutions. Yet the way agencies now operate violates this separation wholesale. The agencies not only make the laws, as the Chevron case shows, they also exercise executive and judicial powers together. The administrative law judges are a significant part of this violation. 

The other principle extends from the separation of powers. The Founders believed that combining any of the lawmaking, law enforcing, and law adjudicating functions in one entity would allow that entity to manipulate laws and compromise individual liberties. In particular, denying persons the judicial process of a trial by jury, wherein they can adequately defend their innocence before their peers before being condemned to punishment, runs counter to the Founders’ intent for a just and balanced system. Defendants get no such process among the agencies, and that is a problem the Founders sought to avoid in their constitutional system. 

Taken together, these cases could do much to realign our system with its fundamental principles. We must strive for renewed fidelity to rule by the people through the separation of powers to protect individual liberty. Let us hope the Supreme Court does its part this term. 

Adam Carrington is associate professor of politics at Hillsdale College.