The GOP’s Flip Side of the Same Coin: Party Politics, Constitutional Politics, and the Administrative State

Easily missed in the tumult last week was the Supreme Court’s decision to review the constitutionality of the Consumer Financial Protection Bureau’s structure. The product of Obama era legislation and a constant source of partisan strife in its short existence, the Court is going to decide whether the CFPB head’s protection from at-will removal by the president violates the Constitution’s separation of powers—the “structural Constitution” as conservatives like to call it. The Court further told the parties to brief whether the entire agency must go if the agency head’s protection from presidential removal is held unconstitutional. Not incidentally, a group of conservative originalist law professors, the Cato Institute, and a handful of conservative public interest litigation groups filed briefs this past summer urging the Court to take the case.

News reports, liberal, and conservative analyses have focused on the legal questions and on whether Justice Scalia’s 1988 dissent in Morrison v. Olson will be “vindicated” (on which more below). But making sense of the Court’s decision to hear Seila Law v. CFPB profits from understanding the judicial and party politics that structure this choice. First, Chief Justice Roberts’ playbook in high salience areas such as this is now well established. Holding at bay the most enthusiastic conservative justices—Thomas, Alito, Scalia (†), and now Gorsuch—Roberts invites new cases where he patiently builds the requisite precedents to accomplish conservative and GOP legal policy goals methodically. Voting rights and campaign finance are pertinent examples of this strategy. Seila Law, then, should be understood as the opening salvo in what will be a line of cases where the Court will pare back aspects of the administrative state conservatives dislike. Indeed, Seila Law is part and parcel of the justices’ forays last term into agency deference and the non-delegation doctrine. As former White House counsel Don McGahn said in 2017, “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.”

Second, and moreover, Seila Law provides an opportunity to, if not “decenter” the Court and the justices, assess the broader array of political actors and groups that structure American constitutional politics. There is an underlying political development logic to Seila Law and the Republican Party’s larger deregulatory policy agenda. Many Court-centered analyses have focused on Scalia’s dissent in Morrison v. Olson as the historical benchmark. But, first, political appointees in the Reagan era Departments of Justice excitedly discussed the possibility of constitutional attacks on independent agencies like the CFPB. In fact, they went further and wondered if agencies like the EPA were unconstitutional vis-à-vis the structural Constitution. Further back still, these constitutional arguments were first the political arguments of the coalition groups making up the movement conservative-captured GOP. These groups found common cause in a deregulatory agenda not simply because of ideational agreement, but for distinct, if overlapping coalitional purposes. In this sense the purported “asymmetry” of the GOP and Democratic parties has been overstated.

In short, Seila Law provides a window into understanding why and how political parties’ legal policy goals develop over time and suggests what we might expect from the Court in this area going forward. What follows is a brief delineation of the GOP’s decades-long effort to rein in those aspects of the administrative state it dislikes. A brief conclusion looks ahead.

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Fear of the administrative state has been an ever-present animating concern of movement conservatism. Thus, paring back the agencies deemed problematic has long been a policy goal. It appealed(s) to economic conservatives and libertarians concerned about markets and burdensome regulations—sometimes real, sometimes imagined. The EPA has long served synecdochically for this coalition group’s overarching economic concerns. Indeed, invoking this narrative, former House Majority Leader Tom DeLay stated his desire to run for office as inspired by the EPA’s overzealous regulation of pesticides when he was a Houston exterminator. The other major stylized coalition groups—social and racial conservatives—also found the administrative state politically troublesome but emphasized a different set of agencies. In the wake of Brown v. Board of Education (1954) and federal civil rights legislation regarding public accommodations, voting, and housing, racial conservatives worried about the existing and newly created Great Society federal agencies that would enforce these statutes. HEW was a frequent target of these groups. As overt racism became politically untenable, racial conservatism was folded into social conservativism and then into the GOP coalition. This was due in no small part due to the work of New Right political entrepreneurs angry about IRS regulations of “seg academies” in the late 1970s. Many Christian Right leaders would later claim it was legalized abortion that drove them to become politically involved.

So, as these coalitions groups cohered, they could find common cause in a broad deregulatory agenda. But these arguments had to be pitched at a high enough level of generality to encompass OSHA and the DOJ’s civil rights division. Importantly, then, the GOP would push for deregulation not only with policy arguments such as cost/benefit analysis and regulatory capture. These arguments make better sense of economic regulatory agencies. So, conservatives also developed constitutional arguments to justify their collective policy goal of deregulation. This strategy enlarged the terrain on which the deregulatory battle could be fought. First, by speaking simultaneously in the patois of policy and first constitutional principles, the GOP could appeal to the elected branches and the courts in pursuit of “the deregulatory effort.” Second, arguing from first constitutional principles was a capacious approach, large enough to address coalition groups’ economic and social concerns.

Once movement conservatives became the driving force behind a party-in-government in 1980, some in the Reagan DOJ began reviving and revising 1920s and New Deal era constitutional conservatives’ arguments emphasizing a formalistic conception of the separation of powers. Stripped to its syllogistic essentials, this argument holds that because administrative agencies combine lawmaking and enforcement components they necessarily violate the structural Constitution’s separation of powers. These arguments, first revived by the Reagan DOJ rather than conservative justices, also reified conservatives developing goal of a muscular executive branch where the president could more easily impose his political will on the administrative agencies, foreign policy (and perhaps the emoluments clause). In 1986, for example, DOJ attorney Bruce Fein gave a speech at the Heritage Foundation attacking “Independent Regulatory Agencies.” Another speech by David McIntosh—at turns, co-founder of the Federalist Society, DOJ attorney, conservative MC, and now President of the Club for Growth—set forth a “proposed DOJ litigating” strategy for undermining “independent agencies.” McIntosh also explicitly namechecked the EPA, among others, as a possible future target.

Two years later Justice Scalia wrote his dissent in Morrison v. Olson, a case dealing with the constitutional status of special prosecutors who could be fired by the president only for cause. Scalia, echoing the Reagan DOJ, insisted the statue ran afoul of the structural Constitution by relying on a formalistic argument for the separation of powers and a robust defense of unitary executive theory. This opinion has been catechized by conservatives. The Federalist Society has produced a mythmaking video on Scalia’s opinion; “The Great Dissent,” the Federalists importune. Indeed, Senator Ben Sasse (R-NE) noted last year he believed “we are bound” by Scalia’s dissent in a Senate debate over special counsel protection legislation for Robert Mueller. Scalia’s dissent is putatively invoked in such ways because of its purported brilliance and obvious constitutional correctness. But it also sets forth a template for a potential Supreme Court majority opinion by five strong conservatives that can blanket the diverse administrative state concerns of GOP coalition groups.

After the interregnum of moderate Republicanism (George H.W. Bush and Attorney General Richard Thornburgh*), and as GOP voters fully heard their elite cues in 1992 and folded social issues on top of the longstanding economic cleavage, the commitment to a deregulatory agenda only deepened. Social conservatives continued to fret about the public schools. The worries were now increasingly voiced in terms of religious freedom claims which they pressed with some success in the Rehnquist Court. Using a policy frame, economic and social conservatives also agreed that school vouchers (“school choice”) were a salutary goal. Here, it was liberals who pushed a (losing) constitutional claim to challenge this policy.

Contemporaneously, libertarian activist-intellectuals like Gary Lawson, a former Scalia clerk and Meese DOJ alum, would set the edges by making the argument that the administrative state is unconstitutional. And as it became increasingly clear during the 1990s that Justice Souter was an Eisenhower rather than a Reagan Republican—a justice who did not subscribe to their deregulatory agenda—the Federalist Society and other GOP-aligned legal activists began to insist the GOP nominate “No More Souters.” Souter’s betrayal was deeply felt. In the summer of 2000, Trump circuit court nominee and then-Alabama Attorney General William Pryor concluded his Federalist Society speech with a prayer to nominee George W. Bush and Jesus Christ: “Please God, no more Souters.”         

George W. Bush, propelled to the presidency by five GOP justices, was attuned to the remade party’s legal and policy deregulation goals. As has been well documented, OSHA and the EPA were targets of Bush executive branch political appointees. The legal policy strand of the deregulatory effort was also supported. Bush’s attorney general, John Ashcroft, gave a 2004 speech to the Federalist Society where he emphasized the argument: “I want to focus my remarks today on the structural separation that governs relations between the branches of the federal government.” This legal policy was further reflected in the justices—and circuit court nominees, like Brett Kavanaugh and Neil Gorsuch—the Bush administration chose with the help of the Federalist Society and the conservative intellectual establishment. Samuel Alito has long emphasized the constitutional conservative problematic of the administrative state. Less stridently, the same can be said of Chief Justice Roberts.

Given the more conservative Roberts Court, economic and conservative libertarians were able to press forward using the First Amendment’s commercial speech doctrine as a deregulatory tool—Justice Kennedy was known to be enamored with free speech claims that ran the gamut. Kennedy, however, was reviled by social conservatives for his long string of votes in favor of LGBTQ rights culminating in same-sex marriage rights in a 2015 case. Confronted with a swift change in public opinion and blizzard of judicial rulings, the aspects of the administrative state social conservatives are perhaps most concerned with now is federal and state agencies who enforce the civil rights of gay and transgender people. This was the “state action” in Masterpiece Cakeshop and a number of cases percolating in the lower courts.

With the addition of Neil Gorsuch—whose newly published book takes direct aim at the administrative state—and Brett Kavanaugh, the Court now has five movement conservatives. Economic conservatives and libertarians will expect the Court to begin in earnest the deregulatory effort utilizing their structural Constitution arguments. This is Seila Law. But as the increasingly rambunctious junior partner in the coalition, social conservatives will also expect the Court to more aggressively address their related if distinct concerns about religious freedom and the administrative state. While the Court is unlikely to go as far as either group desires, it seems manifest “the deregulatory effort” will increasingly be a focus of the Court in near- to medium-term. It is an area worthy of our attention.    

*The conservative William Barr served as Bush’s second attorney general. His papers are the subject of an ongoing FOIA request.

Hello. My name is Calvin TerBeek and I’m a political science PhD candidate at the University of Chicago. My work is focused on party politics and judicial politics from the Progressive Era to Trump. More specifically, I’m interested in how party politics helped create the constitutional politics of the Democratic Party's legal liberalism and the GOP's constitutional originalism. Before coming to Hyde Park, I clerked for two judges and practiced commercial litigation for large and boutique firms. For more, please see my c.v. -- http://calvinterbeek.com/

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