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Since attaining their ideological supermajority, conservatives on the Supreme Court have found themselves quite comfortable when it comes to overturning established precedent, as was evidenced emphatically in the last two terms when they choose to reverse the court's position on abortion and affirmative action. This latest term was no different, as the court has decided to blow up another vital precedent by overturning the bedrock of administrative law in the United States. The inevitable result of this explosive decision will likely mean the end of America's bureaucracy as we know it, something we will all soon come to deeply regret.
The administrative state's impending death stems from a Trump era regulation that came out of obscure government agency, the National Marine Fisheries Service (NMFS). The NMFS implemented a rule which required herring fishing boats in the Atlantic to pay for onboard observers who would ensure compliance with fishing limits. Not wanting to foot the bill for these observers, the fishermen challenged the agency's ability to enact the regulation.
For the average American, it is next to impossible to see how anyone would have rooted for the government in this case. However, the average American isn't especially familiar with the inner workings of government, particularly when it comes to why and how regulations exist.
In this specific example, the reason why the regulation in question was enacted by the NMFS was to mitigate against a tragedy of the commons style collapse of the ecosystem they were created to protect. Without effective monitoring of a common resource to ensure its consumption is limited, its overuse and ultimate destruction is historically and game theoretically proven to be inevitable. So, as obnoxious as this regulation and so many like it are, they are necessary.
In terms of how regulations such as this exist constitutionally, we must first dispel the commonly held belief that only the legislature makes law. The truth is that all three branches of our government can and do make law. Our judiciary makes law via their decisions, which form the binding precedent that is known as common law, the legislature passes bills that becomes statutory law, and the executive oversees agencies which develop regulations we call administrative law which are also known as regulations.
Administrative law developed as a result of Congress creating executive agencies and passing broad statutes, which delegate a constrained degree of lawmaking authority to what has become a vast and highly professionalized bureaucracy that the president oversees. Most respected political scientists studying this branch refer to the executive as the managerial presidency Given that much of an administration's success is determined by the president's ability to corral the bureaucracy into carrying out their agenda.
Congress extends lawmaking power to the executive for a host of reasons, including the fact that its members understand how cumbersome statutory lawmaking is in the best of times. In essence, administrative law provides a way to mitigate against the harms that could arise from legislative paralysis.
Another relevant factor here is that members of Congress usually lack the necessary subject matter expertise to craft intelligent law themselves. By creating an agency staffed with subject matters experts, Congress ensures that those writing the rules will at the very least understand what they seek to control.
Mind you, Congress always retained ultimate control when it comes to administrative law, as they could always alter any agency regulation they disliked by simply passing a statute that would take precedence over it. Congress could even go much further to reign in rouge agencies if they so desired, by either tightening the agency's budget or outright revoking their authority to even exist. In other words, Congress was always capable of checking against executive overreach but was largely happy to delegate the business of governing to the complex bureaucracy it both created and maintained.
Even so, conservatives over the last several decades have begun to chafe at the mere existence of administrative law, seeing it as nothing more than "red tape" that ought to be cut. The Supreme Court's recent decision doesn't just give conservatives a chance to cut said tape, it allows the judiciary the ability to blow up the tape dispenser entirely. Going forward, any regulation that a federal judge disagrees with can be stalled or stopped entirely until five or more members of a 6-3 conservative Supreme Court decide whether they would like to see it survive.
Nicholas Creel is an associate professor of business law at Georgia College & State University
The views expressed in this article are the writer's own.
