Upending the Constitution

Jonathan Bernstein: “What’s actually happening here is dramatically limiting the ability of Congress to govern. It’s Congress, along with the presidency, that sets up these agencies, funds them, gives them tasks, and oversees them. It’s Congress in particular that has used administrative agencies to carry out goals that are too complex for the legislature to micromanage, or really to directly manage at all. Yes, some of this is Congress’s own fault, as they’ve reduced their own capacity. But delegation to executive branch agencies is a perfectly sensible solution to a complicated and constantly changing world, should Congress want to do that. The Court increasingly won’t let them.”

“And now we add to this a literal get-out-of-jail-free card for the president.”

“To be clear: What the Court is doing is reducing the role of Congress. And Congress is the best hope the people have to influence what the government does. At the same time, by aggrandizing the president, the Court is at least in part transforming the presidency from just another portion of the government designed to represent the people into a sovereign above the law. Roberts and his allies are not going after administrative agencies. They’re going after representative democracy — the ability of the people to do collective self-government.”