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The Left is working on various plans for “packing” the Supreme Court. These plans would neutralize or reverse the current conservative majority on the Court by adding a number of new associate justices to be named by a future Democratic president.
The likelihood that a Democratic president will be able to pack the Supreme Court is slim to none, but the real purpose is to influence the current Court, not install a new one.
Court-packing was first tried by Franklin D. Roosevelt in 1937, after the Supreme Court had struck down two New Deal initiatives because they unconstitutionally delegated legislative authority to the president. The Constitution separates legislative and executive power: Only Congress can make a law; the executive branch limited to the law’s administration and enforcement.
Roosevelt’s plan was not popular with the American people, and it did not pass Congress. But it appeared to cow the Court. Not only did the Court begin to modify its views of New Deal legislation, but it never again declared a law to be unconstitutional because it delegated legislative power to the executive branch. As a result, the power of the federal government’s administrative agencies — the “administrative state” — has grown rapidly since the New Deal. Much of this administrative authority seems to be legislative in character, but without the Supreme Court deciding what constitutes a delegation of legislative authority, there is no way to impose limits on this growth.
In general, the Left is pleased with the policies of the administrative state. The ever-multiplying rules and regulations both expand on the laws made by Congress and are issued by a bureaucracy in and around Washington, D.C., that largely shares the priorities of the Left — including its desire to more rigorously control of the economy.
The wellspring of the movement for another Court-packing plan is concern on the Left that the new conservative and constitutionalist majority on the Court will limit the power of the bureaucracy by reviving the idea — called the nondelegation doctrine — that will limit the ability of Congress to delegate legislative authority to the executive branch. The Court has already heard argument on a case, Gundy v. United States, that raises just this issue.
The interesting question is why Court-packing has been proposed and is receiving media coverage now, before the conservative and constitutionalist majority on the Court has done anything to arouse anger on the Left. The answer is that the plan’s current sponsors have another objective in view — a chance to influence the vote of Chief Justice John Roberts on a decision in Gundy that will revive the nondelegation doctrine.
In two cases arising under Obamacare, Roberts showed that he is reluctant to have the Court take controversial positions on major public issues. In both cases, he sided with the four liberals on the Court, upholding the law against strong conservative challenges. Now, apparently, the sponsors of the new Court-packing plan hope that this threat will again persuade the chief justice to lead the Court away from another major confrontation.
Is this strategy likely to succeed? There is good reason for doubt. Chief Justice Roberts is a constitutionalist, like four of his fellow justices — Thomas, Alito, Gorsuch, and Kavanaugh. For constitutionalists, there is nothing more important than protecting, and if necessary restoring, the separation of powers as the central structural element of the Constitution.
Indeed, as recently as 2013, in City of Arlington v. FCC, Roberts himself formulated a statement of the Court’s responsibility that echoes the Framers’ view of the judiciary’s responsibility to protect the separation of powers: “the obligation of the Judiciary [is] not only to confine itself to its proper role, but to ensure that the other branches do so as well.” In other words, if Congress is unconstitutionally delegating its legislative authority to the executive branch, the judiciary has an obligation step in.
The threat of a future Court-packing plan is not likely to deter someone who sees this as the Supreme Court’s historic duty.
Peter J. Wallison is a senior fellow at the American Enterprise Institute. He was general counsel of the Treasury and White House counsel in the Reagan administration.
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Judicial Fortitude: The Last Chance to Rein in the Administrative State
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