In recent years, the ultraconservative Supreme Court has taken steps to restrict federal agency rulemaking, thus limiting the power of the executive branch. Sackett v. EPA follows a disturbing pattern of the Supreme Court narrowing the scope of federal agency review.
In Sackett, The Supreme Court imposed restrictions on the Environmental Protection Agency, significantly narrowing the scope of the Clean Water Act and making it easier for corporations to dump waste and other pollutants into tens of millions of acres of wetlands. This decision will hit Black and brown communities hardest as they are more likely to be negatively impacted by air pollution, water contamination, and climate change.
Rulemaking is a crucial policy-making process for agencies, where they establish regulations to enforce federal legislation and provide technical details that may not be explicitly stated in the legislation itself. This process applies agencies’ deep expertise to interpret and enforce Congressional legislation effectively.
Restricting rulemaking offers up new ways for the Supreme Court to stop progressive policies in their tracks and advance their far-right agenda.
Restricting rulemaking offers up new ways for the Supreme Court to stop progressive policies in their tracks and advance their far-right agenda. This anti-regulatory stance is a boon for corporations and the wealthy, depriving agencies of the ability to make rules that protect our environment, our health, our economy, and more. Following the start of the COVID-19 pandemic, the Court restricted the Center for Disease Control and Prevention from combatting the spread of the virus and prevented the Occupational Safety and Health Administration from enforcing a rule that required large private employers to require vaccines or provide personal protective equipment for their employees. In 2022, the Supreme Court made a similar decision that restricted the EPA’s ability to regulate greenhouse gases and fight climate change. In all these cases, the Court made the dubious legal claim that agencies went beyond what was authorized by Congress, removing protections that kept Black and brown communities safe. The Court used similar reasoning in the student debt cancellation cases, declaring that the Heroes Act did not provide the necessary authorization. We can expect more cases like this challenging agency and Executive branch actions in the future.
Through restricting agency rulemaking, the Supreme Court is eroding the power of the other branches of government and further concentrating it in the hands of the extremist Court. Unfortunately, the upcoming term indicates this trend will continue. The Supreme Court has agreed to hear one case concerning the constitutionality of the Consumer Financial Protection Bureau and one that seeks to overturn the “Chevron deference”, or the factors that courts consider in deferring to government agencies’ interpretation of the law. Both cases would have major implications for administrative law and the future of federal rulemaking, severely limiting the government’s ability to fight climate change, protect our health, and more. Stripping federal agency power is also a goal of extremist leaders aiming to concentrate power in the hands of a single authority—the president. Both the efforts of the extremist wing of the Court and the network of consultants, lawyers, and advocacy groups involved in the next election will have potentially disastrous impacts, undermining not only checks and balances and the separation of powers but our democracy as a whole.
If the Supreme Court gets its way, every agency action will be scrutinized. Everything from immigration to labor rights to paid leave will be subject to review from the far-right Justices.
If the Supreme Court gets its way, every agency action will be scrutinized. Everything from immigration to labor rights to paid leave will be subject to review from the far-right Justices. The safeguards and regulations we’ve fought hard to win, including those from the Clean Air Act, could disappear as the Court decides what does—and does not—fit its own right-wing policy agenda.