The Three Major Cases Before the Supreme Court You Should Know About | Opinion

Although the Supreme Court's 2023-24 docket lacks the kind of headliner cases that dotted the last few terms—in which it destroyed abortion rights and ended affirmative action, among other rulings—the Court is poised to massively reshape American life in ways that evade most non-lawyers. In a trio of cases, the conservative-leaning Court could drain the powers of administrative agencies while at the same time enhancing its own.

There exist hundreds of federal agencies whose collective regulatory power is daunting—spanning everything from manufacturing, aviation, and food safety to education, federal lands, and national security. "If it were a country," the Competitive Enterprise Institute suggested, "U.S. regulation would be the world's eighth-largest economy (not counting the U.S. itself), ranking behind France and ahead of Italy."

Congress creates agencies, most of which are funded through congressional appropriations. Congress also regularly gives agencies the power to enact regulations, which effectively function like laws passed by the legislature. Many agencies also have adjudicatory arms with administrative law judges—or "ALJs"—who make threshold decisions in disputes between parties. Although top-level agency officials are appointed by the president and confirmed by the Senate, they are only democratically accountable through the president. Many lower-ranked civil servants serve for years across multiple presidential administrations.

Critics argue that Congress violates the separation of powers by handing off regulatory power to executive branch agencies in the first place—a theory known as the non-delegation doctrine—and that ALJs are constitutionally flawed because they are not appointed under Article III of the Constitution.

The justification for giving agencies legislative and judicial powers is that their ranks include specialists with more substantive expertise than judges and members of Congress possess. And without agencies, many important laws simply wouldn't get passed, and individualized disputes wouldn't get resolved because the legislative and judicial branches are not deep enough to manage the complexities of modern government.

These debates have pitted politicians against each other for decades, beginning with former President Ronald Reagan's pitch for deregulation in the 1980s. Despite complaints about the costs and burdens of regulations, when asked who should be entrusted with setting standards for storing nuclear waste, for example, most people would agree that there's an important role for people with specialized expertise in particularly sensitive areas that require regulation. If the conservatives on the Supreme Court were to reverse any number of longstanding precedents upholding agency power under the auspices of the Constitution, the alternative could mean that if Congress fails to act, important laws won't exist at all.

This term offers up opportunities for the Supreme Court to take three swipes at the administrative state: killing certain agencies by striking down certain funding mechanisms, stripping agencies of their longstanding discretion to regulate, and gutting the massive federal system of ALJs who decide thousands of individual cases affecting regular people.

In CFPB v. Community Financial Services Association, the Court will decide the fate of the Consumer Financial Protection Bureau (CFPB), which is responsible for consumer protection in the financial sector. Under the 2010 Dobbs-Frank Act, the CFPB receives funding directly from the Federal Reserve, a structure that the challengers claim violates the Constitution's Appropriations Clause. Not only could the Court's ruling disturb all of the agency's work to date, but depending on how far it delves into the separation of powers quagmire, it could threaten Congress' power to design agencies like the CFPB in the first place.

In Loper Bright Enterprises v. Raimondo, the Court could do away with its monumental decision in Chevron v. NRDC. In 1984, that case established that courts must defer to an agency's reasonable readings of a statute when its reviewing regulations rather than override its expert judgment because Congress tapped the agency, not courts, to fill in blanks left by legislation. If the Supreme Court overrules Chevron, it would put thousands of regulations in legal jeopardy, simultaneously thrusting the industries they regulate in economic uncertainty. It would also enhance the Court's power, as judges would become the deciders of regulatory policy.

Finally, SEC v. Jarkesy involves an action for investor fraud brought by the government before an ALJ under the Securities Exchange Act. The Securities and Exchange Commission won, securing a $300,000 fine against a hedge fund founder and his advisor. In the lawsuit that followed, the plaintiffs claimed that ALJs violate the Constitution. If the Court agrees, its ruling could affect the nearly 2,000 ALJs employed by the federal government across a range of agencies, hobbling the government's ability to function.

Taken together, these cases could substantially dismantle the executive branch, with vast implications for everyday life. In 2021 alone, agencies reportedly issued 3,257 rules (some of which abolished older regulations) as compared to only 143 laws passed by Congress. And each year, the Social Security Administration's 1,400 ALJs alone hear around 700,000 cases. Whether the Court will take a hatchet to these programs remains to be seen.

Kimberly Wehle is a professor of law at the University of Baltimore School of Law and author of the book, How to Read the Constitution—and Why.

The views expressed in this article are the writer's own.