SCOTUS deflates Big Government - A deeper look (Part II)

In Part I of this article, we explored the superficial interpretations of Corner Post, Inc., v. Board of Governors, FRS.

Government, allegedly fearing an avalanche of lawsuits by "little guys" harmed by federal regulations, opposed plaintiff's claims all the way to the Supreme Court in an effort to protect federal regulations from legal challenges once six years pass from their publication, even when the little guy is still being harmed. SCOTUS rejected their interpretation of the APA, ensuring that the little guy can still have his day in court.

However, a deeper reading of the dissent reveals the disturbing way in which the Left and Big Government view the little guy, and just why they believe it is essential to prevent him from prevailing.

They’re not ‘little guys’ — they’re the pawns of big corporations and special interests

Democratic Party opposition to the ruling portrayed little-guy lawsuits against the government as opposed to the public interest. Rep. Jerry Nadler, for instance, writing on X, claimed that people challenging government regulations were doing so out of malign motivations:

The decision in Corner Post is another power move by a corrupt majority on the Court to undermine Congress and give big corporations and individuals a way to avoid complying with rules that protect our air, water, land, food, medicines, and rights. Congress must act to reassert its authority under the Constitution to pass laws that protect all Americans and stop those who wish to break these laws for the sake of profit.

Skye Perryman is President and CEO of Democracy Forward, which describes its mission as combating “extreme, anti-democratic movements [which] seek to wield political power and roll back our rights.” He claims that allowing little guys to sue the government is anti-democratic and will have an overwhelmingly negative impact on everyone and everything:

Today’s decision presents serious dangers for the American people, our overall democracy, and could lead to economic destabilization as regulatory certainty has been undermined. With today’s ruling, we can expect to see a flood of litigation by special interests challenging any policy or regulation that doesn’t fit their short-term agenda, even years after the fact, and undermining our government’s ability to work for all people.

The rule may be unlawful, but you have to accept it, because... Democracy!

Those opposed to the SCOTUS ruling also did their best to explain why it was actually bad for businesses both small and large — with the argument that knowing in advance what the law is, even if you are harmed by it, is better than fighting to have the rule cancelled. 

As Ketanji Brown Jackson wrote in her dissent:

When an agency publishes a final rule, and the period for challenging that rule passes, people in that industry understand that the agency’s policy choice is the law and act accordingly. They make investments because of it. They change their practices because of it. They enter contracts in light of it. They may not like the rule, but they live and work with it, because that is what the Rule of Law requires [emphasis added].

Jackson then stated that it was “unfair” to businesses already harmed by government regulations to have those regulations changed, presumably because that would mean that all their suffering had been in vain:

It is profoundly destabilizing—and also acutely unfair—to permit newcomers to bring legal challenges that can overturn settled regulations long after the rest of the competitive marketplace has adapted itself to the regulatory environment.

(Uninformed) little guys preventing government from delivering for everyone

Underlying the dissent seems to be the belief that the Rule of Law is infallible, even if it harms people — because it comes from government, which is the instrument of the people and ipso facto correct and democratic.

Or, as Democracy Forward puts it,

This decision, as well as other cases the Court has decided this term, radically undermines the ability of the federal government to deliver for the American people, undermining our democracy.

The government, in other words, is always delivering for the American people. You may not like what it delivers, but you are obligated to suck it up nonetheless, because that is what the Rule of Law requires of you — that’s democracy.

Somehow, Democracy Forward managed to recruit a long list of entities from the small business world to its brief to the Supreme Court. The Small Business Majority, Main Street Alliance, American Sustainable Business Council (ASBC), South Carolina Small Business Chamber of Commerce, and Businesses for Conservation and Climate Action (BCCA) all joined in a brief “urging the Supreme Court to maintain a strict statute of limitations that begins at the time a regulation is finalized.”

Instability is fine — as long as we’re the ones creating it

The government’s (and the dissenting justices’) hypocrisy was further shown in the recent Chevron ruling (with the same three dissenting justices, Jackson, Sotomayor, and Kagan, opposed), which set clearer limits on the powers of federal agencies. Whereas Jackson was so terribly concerned about the destabilizing impact of allowing little guys to sue the government, she was far less concerned about the destabilizing impact of allowing the federal government to impose new regulations arbitrarily on the entire nation, even when those regulations upended state law and threw the lives of millions of little guys into turmoil.

In a ruling just a few days ago by a Mississippi federal court, the judges referred to the Chevron ruling in their order shutting down Title IX rules, writing that,

The Supreme Court recently held that agencies are no longer entitled to deference pursuant to Chevron ... because Chevron “allow[ed] agencies to change course even when Congress [had] given them no authority to do so.” ... Thus, Chevron “foster[ed] unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty [emphasis added].

Jackson: So you think you can do an end run around government...

It is important to note that this was not the first time that this particular Federal Reserve regulation had been challenged. In 2014, the D.C. Circuit rejected a suit against the Federal Reserve by the National Association of Convenience Stores (NACS) and the Supreme Court declined to hear the case. This time around, the North Dakota Petroleum Marketers Association and the North Dakota Retail Association, two trade groups, filed suit against the Federal Reserve, later adding Corner Post as a co-plaintiff as its six years were not yet up.

In the eyes of Justice Jackson, this was a sign that the case was not really “about a single truckstop and convenience store.” Rather,

... this case is the poster child for the type of manipulation that the majority now invites—new groups being brought in (or created) just to do an end run around the statute of limitations. To repeat: The claims in Corner Post's lawsuit were not new or in any way distinct (even in wording) from the pre-existing and untimely claims of the trade organizations that had been around for decades.

Jackson might have wanted to point out in her dissent that Corner Post was supported by several conservative and corporate interest groups including that of billionaire Charles Koch and the U.S. Chamber of Commerce. She certainly seems to be implying that the Court’s ruling was political in nature — or rather, anti-political, aimed against the government as a whole.

Nothing wrong with political rulings (as long as I’m making them)

SCOTUS’ left-leaning justices are not opposed in principle to political rulings, though. In fact, in a ruling just a few years ago, Justice Kagan wrote that,

... sometimes the law runs out, and policy-laden choice is what is left over.

Kagan explained that wherever there is more than one “reasonable construction” to the law, the judiciary may “conclude that [the question] is more one of policy than of law.” This was the case in Corner Post, she suggested in oral arguments earlier this year, because “there’s not much in the text to look at,” and therefore the Eighth Circuit was entitled to rule based “on policy,” as Corner Post claimed it had.

This guiding principle of hers was disputed by Justice Kavanaugh, who argued that judges should simply “determine the best reading of the statute ... [because laws] are not just common law principles or aspirations to be shaped and applied as judges think reasonable.”

Justice Thomas was perhaps more blunt in his condemnation of Kagan’s views, calling them out as an attack on the judicial role in the separation of powers:

Stopping the [interpretive] inquiry short—or allowing personal views to color it—permits courts to substitute their own preferences over the text.

Poor little guy — you don’t know any better

Summing up the majority ruling in Corner Post, Justice Kavanaugh concluded that Government was attempting to do just that — substitute its preferences for law, and claim more powers than it was entitled to:

The Government’s position therefore would fundamentally reshape administrative law, leaving administrative agencies with extraordinary new power to issue rules free from potential suits by unregulated but adversely affected parties—businesses, environmental plaintiffs, workers, the list goes on...

Kavanaugh stressed the negative consequences for little guys, and how the APA was originally passed in order to protect their interests.

The dissenting justices also claimed that they were acting in the best interests of the little guys. They just believe that little guys are best served by obeying big guys, who know what’s best for them. True, Corner Post joined a pre-existing suit presumably of their own volition — but Jackson refused to even entertain the idea that this could possibly be because they themselves wanted to be part of it.

Instead, the dissenting justices claimed that little guys are being used as pawns in the hands of bad actors:

[The ruling] allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs.

Jackson also appealed to Congress to step in and “address this absurdity ... [and] make clear that lawsuits bringing facial claims against agencies are not personal attack vehicles for new entities created just for that purpose.”

Congress, she stressed, must clarify that “the statutes it enacts are designed to facilitate the functioning of agencies ... [that were] funded ... and vested with authority to set the ground rules for the individuals and entities that participate in our economy and our society.” The fact that the agencies are supposedly there to serve the people rather than to rule over them apparently escapes her.

Jackson, Sotomayor, and Kagan do not even attempt to adequately answer the conundrum posed by Chief Justice Roberts, who pointed out that if the government’s position would be adopted, people who have yet to be born would lose the right to challenge an unjust law simply because “other people” didn’t do so within its first six years.

One can only conclude that they see this as inconsequential, because government, acting as “We the People,” knows better than real people, and the little guy can only win by submitting to the administrative state.