The Federalist Society is the intellectual nexus of America’s conservative legal establishment. It was the incubator of both Supreme Court suits that tried (and failed) to gut the Affordable Care Act, and its events are often the best indicator of what Justice Samuel Alito’s opinions will say two years down the road. The Society’s annual national lawyer’s convention, moreover, typically showcases the many diverse strategies its members have devised to implement conservative policy in any branch of government willing to listen to them. Past convention speakers offered proposals as ambitious as eliminating anti-discrimination law, eliminating the minimum wage, and declaring much of the twentieth century unconstitutional.
This year’s convention, however, which was held this past weekend, took on a decidedly different tone. While flagship conservative ideas such as eliminating unions and protecting anti-gay discrimination certainly were mentioned at the Federalist Society’s 2015 National Lawyers Convention, the panels were fixated on a single idea — restricting or abolishing the power of federal agencies to regulate. Indeed, this topic came up so often that one could be forgiven for assuming that this year’s convention schedule was planned by Captain Ahab, with the Obama administration’s regulations playing the role of Moby Dick.
Given the Federalist Society’s influence among Republican lawmakers — especially the kind of Republican lawmaker who wears judicial robes — it is very likely that many of their proposals will be implemented if the 2016 election gives the GOP control of all three branches of government. It should be noted, moreover, that their proposals to hobble federal agencies are likely to give a structural advantage to Republicans that could very well become permanent. Republicans would still be capable of implementing their preferred policies, while Democrats would struggle to do the same even in the immediate wake of an electoral victory.
What They Want To Stop
Many federal laws delegate authority to agencies to figure out the details of how to achieve policy goals set by Congress. The Clean Air Act, for example, instructs the Environmental Protection Agency to set “standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines” if the EPA determines that those emissions “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” In the 2007 case Massachusetts v. EPA, the Supreme Court explained that this delegation gives the EPA some authority to rein in greenhouse gas emissions — and EPA’s authority in this space is even more robust when EPA invokes its authority under other provisions of the law.
Because Congress already gave the EPA power to check emissions that exacerbate climate change, existing law has enabled the Obama administration to target global warming even though the present Congress has not shown much eagerness to find new solutions to this problem. Unsurprisingly, the fact that existing law gives the President Obama the ability to act without seeking permission from a Republican Congress has not sat well with congressional Republicans — or with those Republicans’ allies in the legal profession.
Similarly, the Affordable Care Act requires employer-provided health plans to cover “preventive health services,” but if gives various divisions of the federal Department of Health and Human Services the responsibility to examine medical evidence to determine which specific services should be included in these plans. Pursuant to this responsibility, health regulators determined that contraceptive care is one of twenty-two women’s preventive services that should be included. This, of course, has not sat well with religious groups that object to birth control, who have now brought their second lawsuit to the Supreme Court claiming that they should not have to follow this rule.
The fact that existing law gives the President Obama the ability to act without seeking permission from a Republican Congress has not sat well with congressional Republicans — or with those Republicans’ allies in the legal profession.
Enter the Federalist Society. Speakers at this year’s lawyer’s convention offered so many different proposals to halt regulatory action, it was difficult to keep track of them all. The conference opened with a speech by Sen. Mike Lee (R-UT), a deeply conservative lawmaker who once claimed that federal child labor laws are unconstitutional because the Constitution was “designed to be a little bit harsh.” Lee used his talk to push the REINS Act, a bill that, if enacted, would most likely freeze most of the federal regulatory code in place. New York Law School Professor David Schoenbrod, the opening speaker at a panel on environmental law, called for a similar regime where regulations would not go into effect until they were enacted by Congress.
Yet, while the conference speakers rarely concerned themselves with whether their proposals may appear too radical or disruptive, the Federalist Society is not naive to the fact that Congress remains a highly dysfunctional branch unlikely to enact major reforms in the near future — indeed, the conference devoted an entire plenary session to a panel on “congressional dysfunction.” Perhaps for this reason, several other speakers suggested asking the judiciary to dismantle the modern regulatory state. Some pointed to the Nondelegation Doctrine, a largely defunct legal doctrine that a conservative Supreme Court briefly used to limit congressional delegations of power to the Roosevelt administration during the early stages of the New Deal. Others offered more modest — though still quite disruptive — ideas, such as weakening or eliminating the Supreme Court’s Chevron Doctrine, which calls upon federal courts to defer to agencies on many regulatory matters within their expertise.
This later proposal would effectively give the Republican-controlled Supreme Court broad new authority to strike down federal regulations.
The Long Game
Thus far, conservatives have had some success in their efforts to thwart the federal regulatory system. REINS is not law, but it has passed the Republican-controlled House on multiple occasions and has earned the endorsement of some GOP presidential candidates. Burwell v. Hobby Lobby granted religious objectors some authority to exempt themselves from the Obama administration’s birth control rules, although the Court is considering another case this term that will decide if many objectors actually have the power to cut off contraceptive coverage for their employees. In King v. Burwell, an attack on the Affordable Care Act that otherwise ended disastrously for the Federalist Society, Chief Justice John Roberts’ opinion for the Court held that Chevron does not apply to questions of “deep ‘economic and political significance’” that are “central” to a statutory scheme. It remains to be seen how much impact King will have on other challenges to regulatory action, but it could prove quite significant.
Ultimately, however, these are very modest successes in comparison to the bold proposals offered at the Federalist Society. Take the REINS Act, for example, which would automatically invalidate any new regulation that impacts more than 0.0006 percent of the nation’s economy unless this regulation is approved by Congress “by the end of 70 session days or legislative days.” Given congressional dysfunction, this bill would likely shut down many new federal rules entirely — regardless of whether those new rules expand the scope of federal regulation, update an existing regulation in light of new technological or other developments, or even if the new rule repeals an existing regulation entirely.
As a practical matter, however, REINS and similar proposals would likely effect a massive shift in power from the Democratic Party to the Republican Party.
Much of our electoral system, at the moment, places a thumb on the scale in favor of Republicans. The GOP-controlled Supreme Court gave state lawmakers more leeway to enact voter suppression laws than they have enjoyed since Jim Crow. U.S. House districts tend to favor Republicans because Democrats tend to cluster in cities where they are concentrated into relatively few congressional districts. These geographic factors are then exacerbated by partisan gerrymandering, which also give Republicans a significant advantage in many key states.
Indeed, in 2012, ThinkProgress estimated that Democrats would have needed to win the national popular vote in all U.S. House races by 7.25 percentage points in order to eek out a bare majority in Congress’s lower chamber.
Meanwhile, Democrats may enjoy a structural advantage in presidential races over Republicans. Democrats won the national popular vote in five of the last six presidential races. Groups that tend to favor Republicans (older voters, white voters, wealthy voters) tend to be more financially secure and settled in their communities, factors which correlate with higher turnout in off-year elections. Meanwhile, groups that tend to favor Democrats (younger voters, lower income voters and voters of color) tend to be less secure, and thus more likely to only vote in presidential election years.
The result is that, while Democrats may capture the White House, they are at a serious disadvantage when trying to capture the House of Representatives. Republican presidents, by contrast, do not face the same problem. So if the House enjoys an effective veto over federal regulations, that’s a bonanza for Republicans because their presidents are much more likely to enjoy sufficient majorities in Congress to get around that veto.
Similar things can be said about judicial efforts to limit agency action. Because Democrats are at a structural disadvantage in House races, Democratic presidents are much more likely to need to rely on their existing statutory authority to make policy. Republican presidents, by contrast, are more likely to be able to sign new legislation because they are less likely to face a hostile House.
The Federalist Society’s proposals, in other words, would take a system that has already been rigged by factors such as voter suppression laws and gerrymandering and rig it even more so that Democrats cannot make policy even when they do earn the mandate of the people.