The Most Important Supreme Court No One Knows

BEN TAUBER: On March 27th, the Supreme Court will hear the case of Kisor v. Wilkie. Their ruling on it, which is all but certain, will constitute a major shift in the balance of power from the executive branch to the judiciary.

The question at the center of the case is whether or not the Supreme Court should overturn the decision made in Auer v. Robbins: the courts must defer to a federal agency’s reasonable interpretation of ambiguous regulations. At first glance, this may seem like a mundane piece of administrative law that the public generally does not need to take much interest in. This case, however, differs in that an affirmative ruling (which is all but certain) will result in a future consisting of much weaker presidents and much stronger judges.

Traditionally, a piece of legislation broadly covers the goals that a certain policy should achieve. Then, it is up to federal agencies—arms of the executive branch—to achieve those goals through various rules and regulations. For example, the Clean Water Act instructs the Administrator of the Environmental Protection Agency to “prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters.” The law leaves it up to the EPA to develop its own regulations that it determines will best achieve the goals established in the law. This is a good thing. It allows for agencies to respond quickly and change regulations according to what will best achieve the broad goals at the current moment. Technology changes and circumstances shift, therefore agencies can flexibly adapt to accommodate. Moreover, it leaves the job of administration to a publicly accountable branch so that the American people can directly approve or disapprove of how a law is being carried out via the ballot box.

Sometimes, however, regulations are vague, and it can be unclear how certain regulations apply in certain specific cases. The unanimous ruling in Auer reaffirmed the Supreme Court’s earlier decision that these cases are subject to agencies’ interpretations of such regulations unless it is “plainly erroneous or inconsistent with the regulation.” Yet, over time, this ruling began to lose the favor of conservatives as President Obama was able to use it to his advantage to set policy while avoiding the legislative logjam of a Republican Congress. The Clean Power Plan, which directed the EPA to address climate change through its regulatory power under the Clean Air Act, is an example of this.

Meanwhile, the courts, the only unelected branch of government, continue to be filled with conservative judges after Republicans blocked Obama’s appointment of some 79 judges before the nuclear option was instituted in 2013. This slowed the judicial confirmation process to a snail’s pace when they gained control of the senate in 2015, and famously blocked the nomination of Merrick Garland to the Supreme Court in 2016. Now is the perfect time for a conservative majority on the Supreme Court to transfer the power of interpreting regulations from a branch who could see a liberal head as soon as 2021 to one whose conservative leanings will remain for decades.

The near-guaranteed ruling on Kisor will allow Republicans to cement their power over policy, even if they lose control of the legislative and executive branches. This move is blatantly undemocratic. The job of the courts is not to determine policy but to determine its constitutionality. Kisor will do much to strip the executive branch from its power to execute and give it to those who face little-to-no public accountability. This should concern all of us.

Max Magid