Elephants and Mouseholes, Loper Bright, and Democracy: Is the Supreme Court’s Assault on the Administrative State Anti-Democratic?

Blog Post | 113 KY. L. J. ONLINE | November 4, 2024

Elephants and Mouseholes, Loper Bright, and Democracy: Is the Supreme Court’s Assault on the Administrative State Anti-Democratic?

By: Bradley Simpson, Staff Editor, Vol. 113 

In the last three years, the Supreme Court dealt critical blows to the supposed “administrative state”—the bureaucratic collection of over 400 federal agencies created by Congress.[1] In 2022, with the advent[2] of its “major questions doctrine,” which requires an agency to point to “clear congressional authorization” for actions that implicate a “major question,” the Court thwarted the Environmental Protection Agency’s attempt to cap carbon dioxide emissions.[3] The following year, the Court applied the infant doctrine to stop the Secretary of Education’s student loan forgiveness plan.[4] In both instances, members of the majority opinion drew upon Justice Antonin Scalia’s famous maxim that Congress “does not… hide elephants in mouseholes”[5] to find it unlikely that Congress’s vague delegation of broad regulatory power entailed the authority to make such highly consequential decisions.[6]

More recently, in June 2024, the Court capped off its assault on the administrative state with its decision to axe forty years of Chevron deference in Loper Bright Enterprises v. Raimondo.[7] Since 1984, Chevron required courts to defer to an agency’s reasonable interpretation of the law when determining the meaning of an ambiguous statute, even when the court disagreed with the agency’s construction.[8] Yet now, under Loper Bright, courts must exercise their independent judgment when deciding if an agency acted within its authority and need not defer to an agency’s interpretation of a law.[9]  

This trilogy of cases dramatically eroded the legislative capability of executive agencies and invigorated the judiciary’s power to “say what the law is.”[10] Critics of the administrative state will likely laud these decisions for their decisive curtailment of agencies’ regulatory power. The aptly named “Fourth Branch”[11] of government has long been criticized for being undemocratic, given that it licenses unelected executive officials to exercise Congress’s Article I legislative power.[12] The empowerment of unelected officials to make laws, the argument goes, blurs accountability because these rule makers are not on the ballot box and thus are insulated from the democratic process.[13] Detractors also detest the commingling of executive and legislative powers in an executive branch agency.[14] Indeed, such agencies conflict with fundamental separation of power principles, considering the “Father of the Constitution” James Madison’s espousal that “[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.”[15] Reducing or eliminating these agencies’ legislative power thus arguably comports with democratic and separation of power ideals.

Proponents of the administrative state have, in turn, denounced the Supreme Court’s assault as anti-democratic. The Court’s decisions largely shifted policymaking discretion from Congress and the president—elected officials—to unelected federal judges.[16] With the capacity to strike down an agency’s action as a major question and ignore their interpretations of the law, unelected federal judges can effectively substitute themselves for Congress and the executive branch as policymakers.[17] And while executive officers like the Secretary of Education do not directly face the democratic process, they are still accountable to the president. After all, President Biden would have faced the democratic consequences of the loan forgiveness plan’s political success or failure.[18] Moreover, the Secretary of Education did not have unfettered discretion to cancel student loan debt—if President Biden disagreed with the policy, he could have exercised his removal power to prevent its implementation.[19] In short, the Court’s decisions shifted policymaking power from unelected officials under the supervision of a president directly accountable to the democratic process every four years to unelected, lifetime appointed judges insulated from all democratic accountability, save for the exceedingly rare impeachment.[20] A neutral observer may be hard-pressed to characterize such a result as pro-democracy.

Despite these criticisms, the Supreme Court’s assault on the administrative state does accord some cause for democratic optimism. In practical effect, the major questions doctrine and Loper Bright “anti-deference” create judicial checks on the executive branch’s power that fit neatly in the United States system of checks and balances. Consistent with separation of powers principles, Congress can easily override this judicial veto: it can clearly delegate the authority that a court found an agency lacked, statutorily adopt an agency’s interpretation of a law, or simply pass the law the agency attempted to implement. Indeed, Congress is no stranger to overturning statutory interpretations that it deems erroneous.[21] These judicial checks force Congress to confront the consequential, far-reaching policy decisions that impact the most Americans. The upshot is that this system reinforces accountability, leaving no doubt about whom the people should blame or praise for legislative policy: Congress.

Such optimism, however, presupposes a productive legislature. Unfortunately, these decisions will only exacerbate minoritarian obstructionism that continues to frustrate the democratic process.[22] Popular yet politically controversial policies like student loan debt cancellation and carbon dioxide regulation are all but certain to meet Congress’s executioner’s sword: the filibuster.[23] Perhaps that is a good thing—after all, the founders carefully crafted the arduous legislative process with checks and balances to protect the minority’s liberty interests and prevent a “tyranny of the majority.”[24] But perhaps not. Now more than ever, the will of the people will undoubtedly be subject to the humors of the majority of a nine-person panel of unelected justices. And forgiving student loan debt and reducing carbon dioxide emissions is hardly the handiwork of tyrants. 

In an election year teeming with implications for democracy,[25] perhaps the vigilant eyes of “We the People” should take care to monitor the Supreme Court’s continued aggrandization of policymaking discretion.

[1] See Lathan Watts, The Administrative State: The Lawmakers No One Votes For, All. Defending Freedom (Oct. 11, 2024), https://adflegal.org/article/administrative-state-lawmakers-no-one-votes/.

[2] As the dissenting Justice Elena Kagan noted, the Court had never used the term “major questions doctrine” prior to this decision. West Virginia v. EPA, 597 U.S. 697, 766 (2022) (Kagan, J., dissenting).

[3] Id. at 732–36.

[4] Biden v. Nebraska, 143 S.Ct. 2355, 2376 (2023).

[5] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

[6] See West Virginia v. EPA, 597 U.S. at 746 (Gorsuch, J., concurring); Biden v. Nebraska, 143 S.Ct. at 2382 (Barrett, J., concurring).

[7] Loper Bright Enters. v. Raimondo, 144 S.Ct. 2244, 2273 (2024) (holding that “Chevron is overruled”).

[8] Id. at 2254.

[9] Id. at 2273.

[10] Marbury v. Madison, 5 U.S. 137, 177 (1803).

[11] See Richard A. Epstein, Why the Modern Administrative State Is Inconsistent with the Rule of Law, 3 N.Y.U. J. L. & Liberty 491, 492 (2008) (referring to the administrative state as the “Fourth Branch” of government).

[12] See, e.g. Gillian E. Metzger, 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 3 (2017); Watts, supra note 1.

[13] Watts, supra note 1.

[14] See, e.g., Lindsey Martin, The Administrative State: Congress’s Role in Perpetuating It, 41 Campbell L. Rev. 559, 560–63 (2019).

[15] The Federalist No. 47 (James Madison).

[16] Jody Freeman & Matthew C. Stephenson, The Anti-Democratic Major Questions Doctrine, 2022 Sup. Ct. Rev. 1, 21 (2023).

[17] Biden v. Nebraska, 143 S.Ct. at 2385 (Kagan, J., dissenting).

[18] Id. (Kagan, J., dissenting).

[19] Executive officers appointed by the president and confirmed by the Senate, such as the Secretary of Education, are subject to at-will removal by the president. Myers v. United States, 272 U.S. 52, 164 (1926).

[20] Only fifteen federal judges have ever been impeached. See Impeachments of Federal Judges, Fed. Jud. Ctr., https://www.fjc.gov/history/judges/impeachments-federal-judges (last visited Oct. 24, 2024).

[21] See William N. Eskridge, Jr., Overriding Supreme Court Statutory Decisions, 101 Yale L.J. 331, 338 (1991).

[22] See Freeman & Stephenson, supra note 16, at 21–22.

[23] See Gabriela Parra, Three in Five Americans Support Biden’s Student Loan Forgiveness Proposals, Navigator (May 30, 2024), https://navigatorresearch.org/three-in-five-americans-support-bidens-student-loan-forgiveness-proposals/; Alec Tyson & Brian Kennedy, Two-Thirds of Americans Think Government Should Do More on Climate, Pew Rsch. Ctr. (June 23, 2020), https://www.pewresearch.org/science/2020/06/23/two-thirds-of-americans-think-government-should-do-more-on-climate/.

[24] See, e.g., The Federalist No. 51 (James Madison); Edwin J. Feulner, Preventing “The Tyranny of the Majority”, Heritage Found. (Mar. 7, 2018), https://www.heritage.org/conservatism/commentary/preventing-the-tyranny-the-majority.

[25] Sophie Yarin, Is Our Democracy at Risk?, Bostonia (Aug. 7, 2024), https://www.bu.edu/articles/2024/is-our-democracy-at-risk/.