The Senate's presumed confirmation of Amy Coney Barrett to the Supreme Court would finally hard-wire the "McConnell rule" into American politics: Elections matter, and the party that wins them can do anything it wants.
Not surprisingly, some Democrats anticipating a sweep in next month's election are eager to use the McConnell rule to justify ending the Senate filibuster and add to the Supreme Court two or even four new justices appointed by a potential new Democratic president and confirmed by a possible new Democratic Senate.
There is, however, a better way for Democrats to achieve their policy goals without responding to Republican court-packing with court-packing of their own. For if Democrats are able to expand the Supreme Court, then they could just as well use the same legislative power to overturn many of the worst decisions of the Rehnquist and Roberts courts over the last 30 years and stymie a new conservative majority on the court in its quest to dismantle the regulatory state.
Indeed, one sweet irony of such a strategy is that it would use the oft-professed judicial philosophy of Barrett and the court's other "textualists" — that courts should leave policymaking to elected officials and stick to the text of the laws and the Constitution — to tie them up in a legal straitjacket of their own making.
At Barrett's confirmation hearing, Democratic members of the Senate Judiciary Committee argued melodramatically that Barrett's confirmation would doom Obamacare and deny urgently needed medical care for tens of millions of Americans. What none mentioned was that a Democratic Congress could easily remove that threat on the afternoon of Joe Biden's inauguration by restoring the law's individual mandate, rendering moot the already flimsy challenge now before the court.
The Trump administration has also spent the last four years dismantling every Obama era regulation meant to reduce emissions of carbon dioxide that cause global warming, and it would take another four years of painstaking rulemaking and litigation to unwind those efforts. But a Democratic Congress and president could do it in a single stroke by adding those regulations to the Clean Air Act. To fortify the new statute against the inevitable court challenge, Congress could also include a detailed factual finding of the grave economic and security threat posed by global warming, along with an unambiguous statement of national purpose to eliminate carbon emissions with all deliberate speed.
By statute, Congress could make sure that the courts codify recent court decisions banning discrimination on the basis of gender and sexual orientation and extend them more broadly to housing, employment, education and public accommodation.
In a similar fashion, Democrats could also restore the power of public employee unions to collect representation fees from all workers in their bargaining units. Two years ago, in Janus v. AFSCME Council 31, a conservative court majority handed a long-sought victory to the anti-union movement by declaring that such required fees violated the free speech rights of government workers. But a change to federal labor law could allow the public employee unions to negotiate for reimbursement for representation costs directly with public employers, sidestepping the First Amendment issue.
By legislation, Democrats could also overturn Roberts Court decisions long sought by the business community to close the courthouse door to those harmed or defrauded by businesses. Those decisions — Epic Systems Corp. v. Lewis, New Prime v. Oliveira, AT&T Mobility LLC v. Concepcion, Shearson/American Express v. McMahon, American Express v. Italian Colors Restaurant — upheld the legality of the now-widespread practice by American business of requiring workers and consumers to resolve any grievances through case-by-case arbitration that is hopeless stacked against them. A simple amendment to the 1925 Federal Arbitration Act, could unwind decades of litigation painstakingly orchestrated by the U.S. Chamber of Commerce and other business groups to bar class-action lawsuits on behalf of workers and consumers.
For legal conservatives seeking to dismantle the "regulatory state," there is no case law more ripe for overturning than the 1984 decision in Chevron v. Natural Resources Defense Council. In that case, the justices said courts should defer to the expert judgment of regulators when interpreting statutes whenever the wording or meaning of those statutes are ambiguous. For decades, this Chevron deference has frustrated efforts by industry groups to challenge a wide range of federal environmental, consumer protection and labor regulations. As circuit court judges, Neil Gorsuch and Brett Kavanaugh launched a campaign to overturn Chevron, often finding support at the Supreme Court in dissents by Justices Clarence Thomas and Samuel Alito and Chief Justice John Roberts. Now that Gorsuch and Kavanaugh have been elevated to the Supreme Court, and especially if they are joined by a like-minded Barrett, legal observers say it is only a matter of time before the Court renounces Chevron deference.
But a Democratic Congress and president could set back that effort, if not derail it, by incorporating Chevron into all of statutes authorizing federal regulation with wording that explicitly rejects the language and legal logic used by Justices Gorsuch and Kavanaugh.
The same approach could be taken to thwart a similar effort to eviscerate the regulatory powers of the Federal Trade Commission, Federal Communications Commission, Federal Reserve,Occupational Safety and Health Administration and other federal regulatory agencies. Congress delegates to these agencies the authority to issue regulations that further the broad goals set forth in federal statutes — protect consumers from fraud, assure broadcasters operate in the public interest, protect workers from injury, assure the financial safety and soundness of the banking system, and so forth. As recently as 2001, even Barrett's mentor, Justice Antonin Scalia, reaffirmed Congress's delegation powers as long as it articulates an "intelligible principle" for the agency to follow in crafting its regulations.
But recently, in the case of Gundy v. U.S., Gorsuch wrote a lengthy dissent, joined by Roberts and Thomas, in which he argued that such a broad delegation of legislative authority was unconstitutional. The constitution's separation of powers, he wrote, must be limited to fact-finding, not policymaking. Subsequently, Alito and Kavanaugh have voiced their agreement with this cramped view of Congress's power to delegate its authority — a view that, in the words of Justice Elena Kagan, would "make most of Government . . .. unconstitutional." It is only a matter of time before the Court's conservative majority will find another opportunity to revisit the issue.
Democrats could try to forestall this challenge to the regulatory state by writing Scalia's "intelligible principle" criteria into law. Should that fail, Congress could also revisit almost every federal statute and add to the broad language more detailed instructions on the kind of regulations it had in mind. And if that is not enough text for the textualists, a Democratic Congress could always write the entire existing code of federal regulation into law while giving itself veto power over all future regulations.
While such initiatives would be unlikely to deter the court's most zealous judicial activists, they would send a strong signal to its institutionalists — Roberts and Kavanaugh — about the high political cost of overturning long-standing precedent, ignoring Congress and further politicizing the court.
To reinforce that message — and to placate liberal Democrats clamoring for court-packing revenge — the House Judiciary Committee could also hold extensive hearings on a bill to expand the court and report it favorably to the full House. By simply holding the legislation at the Speaker's desk, ready to be taken up at any time, Democrats would be delivering a not-too-subtle warning to the court's textualists that, one way or another, Congress intends to hold them to their promise to follow the law rather than make it.
It was an act of constitutional chutzpah for Chief Justice John Marshall in 1803 to declare, in Marbury v. Madison, that it was the "province and duty of the judicial department to declare what the law is." In fact, a close reading of the Constitution suggests that such power was meant to be divided among the three branches of the government. Given the current court's enthusiasm for invalidating laws and overturning its own precedents, it is time for Congress to reassert its rightful role not by packing the court but by using its legislative power to put it in its place.
Steven Pearlstein wrote this piece for The Washington Post.