Jacobsen: This is what happens when Supreme Court decides for do-nothing Congress

In 1936, as the country’s economy was slowly recovering from the Great Depression, the Republican Party nominated Kansas Gov. Alf Landon to be its presidential candidate. Landon ran on the promise to repeal the New Deal, the system of energetic government involvement in the economy instituted by incumbent President Franklin D. Roosevelt.

Key to implementing the New Deal was the creation or expansion of an “alphabet soup” of executive branch agencies. Many agencies we simply take for granted today, from the Food and Drug Administration to the Social Security Administration to the Securities and Exchange Commission, were either created or had their powers vastly expanded during FDR’s three-plus terms in office.

Landon and the Republican Party of 1936 were strongly opposed to what has since come to be known as the administrative state. Seen in retrospect, their opposition can seem a bit paradoxical. For example, the SEC made America’s financial markets much safer for small investors, helping to turn people of modest means into capitalists.

The GOP of 1936 claimed to be standing on the constitutional principle of separation of powers (which isn’t actually stated in the Constitution). The third paragraph of the party’s 1936 platform read in its entirety: “The powers of Congress have been usurped by the President.”

By running on that platform, Landon was asking the American people to express their view as to whether they approved of Roosevelt’s expansion of executive authority.

They did. Landon carried just two states. (One was Vermont, yet to begin its transformation into the Ben and Jerry’s state that keeps electing Bernie Sanders. The other was Maine.) In Congress, Republicans ended up with just 88 representatives and 22 senators.

These figures are distorted by the de facto existence of a third party, the segregationists of the Solid South, who were then still running under the Democratic banner as a kind of flag of convenience, continuing in the tradition of such stalwart Democrats as Jefferson Davis. Still, the vote totals suggested the American people either didn’t believe the president was usurping the powers of Congress or thought it was high time he did so.

Last August, I wrote a column about the Supreme Court’s then-recent decision in West Virginia v. Environmental Protection Agency, a very strange case in which the court ruled on the validity of regulations proposed by the Obama Administration that had never gone into force.

In the course of that advisory opinion (that’s what Justice Elena Kagan called it), Chief Justice John Roberts announced the court’s adoption of the “major questions” doctrine, which authorizes the court to veto administrative actions that, in the court’s view, usurp the powers of Congress.

The Republicans lost big in 1936. But 86 years later a key plank of their platform was enacted into law by the Supreme Court.

In August, I pointed out that the court established no clear guidelines for deciding when an agency action violates the “major questions” doctrine. Rather, the court said it would apply ordinary canons of statutory construction unless a case was “extraordinary,” in which case the agency’s action would be presumed unlawful. But “extraordinary” and “major” aren’t legal standards. They’re labels — end results of a process that has already been completed.

Today’s Supreme Court issues very few formal opinions. The 2021-22 term produced just 66, less than one per month per justice. So why did the justices devote so much effort to a decision with no immediate practical effect? The answer is now clear: they were stockpiling precedent for future use. This term, the six-justice majority relied on West Virginia v. EPA to invalidate President Joe Biden’s student debt relief plan.

Of course, if the executive branch really was encroaching on Congress’ authority, either in 1936 or 2023, it was within Congress’ power to do something about it. It could, for example, change the law. But the current Congress chose not to do that. So six unelected political appointees substituted their opinion about what Congress should do for Congress’ own.

In practical terms, Congress no longer has the authority to silently accept any agency action the justices choose to single out for special attention. In those cases, if Congress fails to act to the court’s satisfaction, the court will act on Congress’ behalf. All this, ironically, in the name of separation of powers.

Last November, Charles Fried, a Republican lawyer who served as President Ronald Reagan’s solicitor general, published a letter in the New York Review of Books objecting to a sitting federal judge’s characterization of the Roberts Court as “conservative.” He wrote: “The correct term is ‘reactionary,’ and the best description of what they are doing is a program to repeal the twentieth century.”

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.