Each of the last three Supreme Court terms included one blockbuster decision that reversed decades of longstanding bad precedent that the Supreme Court had previously made. In 2022, Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, correcting one of the most egregious infractions of constitutional principle in the Court’s history. In 2023, the Court reversed course in Students for Fair Admissions v. President and Fellows of Harvard College after tolerating racial discrimination in university admissions for decades. And this year, the Court handed down Loper Bright Enterprises v. Raimondo, overturning Chevron deference forty years after the Court decided Chevron U.S.A. v. Natural Resources Defense Council. Chevron deference let federal agencies have their way in the interpretation of “silent or ambiguous” statutory text if they were employing “a permissible construction of the statute.” That effectively gave bureaucrats free rein, with real-world consequences that harmed many, including veterans, social security recipients, and immigrants.
While the Loper Bright case involved statutory construction—specifically, the Administrative Procedure Act of 1946—the Court’s ruling vindicated the separation of powers. Justice Clarence Thomas highlighted this constitutional dimension of the case in his concurrence when he asserted that Chevron entails an impermissible abdication of the judicial power vested in judges under Article III. And this latest decision built on similar checks to agency overreach by the Court in recent years.
In several cases, the Court applied the “major questions doctrine” to invalidate power grabs by agencies on matters of broad economic and political significance in the absence of the clear congressional authorization that was required. In National Federation of Independent Business v. Department of Labor (2022), the Court stayed OSHA’s vaccination and mask-wearing requirement for companies with 100 or more employees. In West Virginia v. Environmental Protection Agency (2022), the Court struck down the EPA’s draconian emission reduction mandates. In Biden v. Nebraska (2023), the Court did away with President Biden’s exorbitantly expensive student-loan cancellation plan. The split in those three cases and in Loper Bright was 6–3.
This term, in Garland v. Cargill, the Court held by the same 6–3 margin that the ATF exceeded its statutory authority when it issued its 2018 rule declaring bump stocks to be machineguns—a reversal of the agency’s earlier interpretation of the National Firearms Act occasioned by the mass shooting in Las Vegas. This case provided a great example of what’s wrong with the regulatory system. ATF interpreted the law one way. Then a big event created political pressure and, rather than following through via the legislative process, the bureaucrats realized it would be faster and easier just to abruptly change course in the regulations. That mentality translates into a complete lack of predictability in the law, which changes overnight with the political winds rather than through consideration and compromise.
The Court did not provide a panacea for this arbitrariness, but it went a long way toward curtailing it. Policy objectives, however desirable, cannot be achieved on the whim of a single regulator without the agreement of the people’s representatives. Congress, for its part, needs to step up and do its job.
And for litigants left to defend their interests in court, the Supreme Court ensured in Corner Post v. Board of Governors of the Federal Reserve System that the Administrative Procedure Act’s six-year statute of limitations would not be distorted by a contrived construction. The six-year statute of limitations follows the point when “the right of action first accrues” to challenge a final agency rule, which is when the party is injured, not when the rule is promulgated. The Court’s ruling was again 6–3, and ensures the courts remain open to the innumerable litigants who are injured more than six years after an agency adopts a rule.
Beyond its consequential statutory rulings, the Court in recent years has also held the structure of agencies to run afoul of constitutional constraints. This year’s decision in Consumer Financial Protection Bureau v. Community Financial Services Association of America rejected a challenge to the funding mechanism of the Consumer Financial Protection Bureau (CFPB) that was narrowly grounded in the Appropriations Clause of Article I. But the same agency’s structure with a powerful director who was removable by the president only for cause was held unconstitutional in Seila Law LLC v. Consumer Financial Protection Bureau (2020).
The Court applied Seila Law to reach a similar conclusion in Collins v. Yellen (2021) about the unconstitutionality of the structure of the Federal Housing Finance Agency (FHFA), which was led by a director who was also subjected to “for cause” removal protection.
Cases reaffirming the bounds of the structural Constitution draw less interest than those involving the guarantees of the Bill of Rights. Justice Antonin Scalia famously took issue with this distinction. While virtually all countries in the world have bills of rights, he noted, that feature does not necessarily prevent the oppressive “centralization of power in one man or one party, thus enabling the guarantees to be ignored. Structure is everything.” The importance of reinforcing our constitutional structure in the face of an overgrown administrative state should therefore not be underestimated.
In an interesting variation on Scalia’s axiom, one case this term illustrates how protections mentioned in the Bill of Rights can also reinforce the separation of powers. In Securities and Exchange Commission v. Jarkesy, the SEC levied a substantial civil penalty against a hedge fund manager and his firm for fraud in an enforcement proceeding it chose to adjudicate in-house—which entailed no jury. The Court rightfully saw through the government’s attempt to evade its protection of Jarkesy’s Seventh Amendment right to a jury trial by trying to distance its fraud claim from the common-law claims covered by the Seventh Amendment.
Administrative agencies cannot opt out of the Bill of Rights. Now, by the Court’s ruling, if the government seeks to deprive someone of his property and money in this kind of case, it must employ the jury trial option available in Article III courts.
In Jarkesy, the justices once again split 6–3. Court watchers can say with confidence that that is the margin by which today’s justices take the structural Constitution seriously. That in turn sounds a cautionary note: Who sits on the Supreme Court in the future will make a critical difference to upholding the bulwark of our liberty provided by the separation of powers.