Should progressives be more alarmed by Donald Trump’s threat to the Constitution or by the Constitution’s threat to progressivism? For the answer, read on.
Woodrow Wilson, a progressive and the first president to criticize the Founding, considered the Constitution’s essence — the separation of powers — an impediment to a modern necessity: encompassing government wielded by an unimpeded executive. Progressives’ dismay about two of the Supreme Court’s end-of-term rulings illustrates how far their criticism of the Constitution goes beyond Wilson’s.
When a federal agency ordered four small fishing companies to pay the estimated $700-a-day cost (reducing their profits 20 percent) of on-board government inspectors, the companies sued, arguing that no statutory language explicitly authorizes the agency to impose this burden. The agency invoked Chevron deference, a court-created (in 1984) doctrine that says when Congress uses ambiguous legislative language, or is silent on a subject, a court reviewing an agency’s disputed action should defer to the agency, if its action is “reasonable.”
The doctrine, in addition to encouraging Congress’s slipshod legislating, impinges on the judiciary’s duty to (in Chief Justice John Marshall’s words) “say what the law is.” So, the Supreme Court held, 6-3, that Chevron deference violates the 1946 Administrative Procedure Act, which stipulates that courts shall “interpret” statutes and decide “all” questions of law. Chief Justice John G. Roberts Jr. wrote for the majority: “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”
There it is, progressives’ bête noire: the separation of powers. Somewhere, Woodrow Wilson weeps. Here, Justice Elena Kagan dissented.
She defended, as progressives who created it must, the administrative state’s status quo. Extinguishing Chevron deference — narrowing agencies’ discretion — will, she said, cause “a massive shock to the legal system,” because Chevron deference “has become part of the warp and woof of modern government.”
Kagan calls overturning the court’s creation, Chevron, “judicial hubris.” Yet progressives advocate courts wielding judicial power to legitimize progressive practices — agencies’ semi-legislative activities, regardless of their incompatibility with the separation of powers.
It is, however, not hubris when courts reject Panglossian progressivism: All is for the best in this best of possible worlds; “modern government” is what it is, so it should be what it is.
The other case also has progressives fretting about the court’s curtailment of executive agencies’ discretion. An investor was accused of fraud by the Securities and Exchange Commission. The SEC has been empowered by Congress to be the arbiter of its own judgments. So, the investor was convicted by an SEC in-house administrative law judge, who fined the investor $300,000 and banned him from the securities industry. The SEC has a lopsided winning record in cases it assigns to be judged by itself.
Now, however, the court has held, 6-3, that Congress cannot “conjure away” (language from a previous ruling) the Seventh Amendment’s guarantee of a right to trial by jury. Writing for the majority, Roberts cited Alexander Hamilton’s Federalist 78): “There is no liberty, if the power of judging be not separated from the legislative and executive powers.” Yet again, progressives regret the separation of powers, meaning: the Constitution. (One of the Atlantic magazine’s endless supply of hysterics anticipated this outcome as “terrifying” and “destroying” the government’s “administrative capacity.”)
Justice Neil M. Gorsuch, concurring in the judgment, and joined by Clarence Thomas, wrote that the Seventh Amendment “does not work alone”: It works in tandem with the Fifth Amendment’s guarantee of due process. Dissenting, the three progressive justices (Sonia Sotomayor, joined by Kagan and Ketanji Brown Jackson) say that limiting the SEC’s discretion to choose its own judges ignores what “modern-day adaptable governance must look like.” Well.
Consider the lengthening list of progressives’ complaints about the Constitution’s incompatibility with their “modern-day adaptable” government. They consider the First Amendment too protective of speech that harms an individual’s serenity, or society’s comity. Don’t get them started on the Second Amendment (the right to bear arms). Now they resent the Fifth and Seventh Amendments working together to inhibit progressives’ handiwork: the administrative state agencies whose discretion has been curtailed because the separation of powers dictates the demise of Chevron deference.
For more than a century, progressivism’s unvarying agenda has been to concentrate power in Washington and concentrate most of this power in the executive branch. Progressives have constantly prioritized expanding government’s power and scope over individual freedom. With two excellent end-of-term decisions, the court affirmed the Constitution’s different priorities.
So, the answer to the question posed in the first paragraph is: the latter.
George Will writes a column for the Washington Post. His email address is georgewill@washpost.com.