The Supreme Court is Reversing Centralisation
Overruling Roe v Wade is just one of the many cases that the Supreme Court is using to limit the Administrative State.
[Note: Some of the details regarding specific cases may be incorrect. I am not trained in American law, nor am I an American. My main concern is the general impact and direction of the Court’s decisions on the structure of power in America, specifically with regards to the power of the Administrative State. Future edits will be placed just below this note so that readers are aware of any necessary changes to the article.]
I. The Administrative Empire
In a blockbuster term, the conservative-dominated Supreme Court has overruled Roe v Wade and the federal right to abortion, stopped New York State forcing the licensing of carrying firearms in public, limited an Obama-era law empowering the Environmental Protection Agency to regulate emissions, and empowered religious liberty through publicly-provided school vouchers in Maine. Next term, the Court will also hear Moore v Harper, a case with ramifications for Federal elections.
This is a revolutionary moment for America’s constitutional order.
The decision to overrule Roe v Wade has received the widest attention both in America and around the world, although its actual impact to abortion access is likely to be limited. Far from being a singular crusade against abortion, the Court is re-interpreting the Constitution in several cases to reverse decades of centralisation that has been in favour of the Administrative State.
Let’s call the Administrative State ‘the Bureaucracy’ for brevity. The Bureaucracy sits at the core of America’s hierarchy of power. It consists of a tribe of executive federal agencies that make up the Federal Government (known by their three letter abbreviations) and possess wide ranging powers that many, particularly Originalists (i.e. constitutional purists) believe are unconstitutional.For decades, the Bureaucracy has been aggressively pursuing centralisation by intensifying legislative, judicial, and executive powers in the Federal Government.
The Bureaucracy enjoys powers not limited to: nondelegation and agency dynamics (legislators delegate legislative powers to the Bureaucracy to create, adjudicate, and enforce laws), judicial deference (the Bureaucracy’s interpretation of a law supersedes a court’s interpretation), and procedural rights. The Bureaucracy really excels in the area of procedural rights through the manipulation of procedural outcomes, moving between the letters of the law to extract an ideal outcome.
The Bureaucracy has created a moat of proprietary knowledge through decades of institutional knowhow when it comes to procedural manipulation. Because of the obscurity of their creation and operations, the average citizen is unaware of how extra-constitutional power is exercised, and how often their constitutionally-endowed legislators and judges are powerless against the Bureaucracy, who have a significant advantage when creating, adjudicating, and enforcing laws. This is what makes power hard to locate in America.
Another thing that the Bureaucracy excels at is propaganda, i.e. the deployment of lower order emotional narratives around morality totems like climate change, gun violence and control, and abortion, to polarise Americans and create a loyal voter base as a form of democratic legitimacy. Instead of making an argument for the expansion of the Bureaucracy’s power, they argue that they are helping the environment, or expanding women’s right to healthcare, and so on. Nearly all Current Things emerge out of higher order games of power.
The Blue tribe (i.e. the institutions and actors around the Democratic party, which largely controls the Administrative State) treats attacks on the expansion of Bureaucratic power as attacks on America’s democracy itself. For the Americans brought up in the bosom of the Bureaucracy, it may feel like America itself may be under attack. After all, the institutions of power around them manufactured an alternative reality based around morality totems like abortion, climate change, and other issues. These narratives form a civic religion for the Blue voter base.
On the other hand, the Red tribe (i.e. the centre-right/right coalition around the Republican party) tends to occupy a lower level in America’s hierarchy of power, and this is partly where the animus against abortion stems from.US states and the American gentry have little interest in the expansion of federal power, whether it’s regulating carbon emissions, gun control, or abortion. Abortion happens to be the most salient issue because of the involvement of children, which is one of the easiest issues in which to manipulate public opinion.
When Republicans advocate for gun freedoms and Democrats advocate for gun restrictions (replace guns with any other issue), what is really being advocated is either the restriction of Bureaucratic power or the expansion of Bureaucratic power depending on which favours which political tribe the most.
The Court is now on a warpath against the Bureaucracy, and its most recent decisions are not just causing a crisis within the Bureaucracy and among its supporters, but will cause a cultural realignment as narratives shift and new morality totems are created to rally client bases around. The overruling of Roe v Wade is one front in this game of power and perhaps not even its most important, with limited ramifications on access to abortion and wider ramifications on federal power in America.
II. The Supreme Court Strikes Back (on Abortion, the EPA, and the SEC, among other things)
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
— The 10th Amendment
The Court’s ruling in Dobbs v. Jackson (’Dobbs’) holds that the Constitution does not confer a right to abortion, nor does the Federal Government have any oversight in how states legislate on abortion. Dobbs overrules Roe v Wade (’Roe’) in which the Court at the time determined that the Constitution did protect women’s rights to access abortions and that the Fed could enforce this.
Contrary to the social media furore, Dobbs does not ban abortion, but it does again allow states to determine laws on abortion. US states’ legislation on abortion is likely to land somewhere in the middle between America’s excessive permissiveness for abortion and a complete ban. With Roe, America is fairly extreme when it comes to abortion rights: most US states permit abortion up to 30 weeks of pregnancy, with a handful even permitting it up to 40 weeks (up until the point of pregnancy). On the other hand, most European states set the limit at 11-20 weeks (see graph for comparison below).
Dobbs means that there will be significant variation in states’ legislation on abortion. Statistically, there are far more abortions in blue states than there are in red states. An unbelievable 51.5% of pregnancies were aborted in Washington D.C. compared to 13.7% in Texas. Some red states drop below 1%. There is no reason that federal laws should mandate a uniform policy towards abortion with such extreme variance.
It’s reasonable to assume that many Red states will attempt to severely restrict abortion. However, Red states that implement the harshest anti-abortion measures (i.e. a complete ban) will likely be forced to apply a more moderate position over time, not as lenient as Blue states, but something closer to the European norm. Blue states will continue to maintain permissive laws on abortion. Like Red states, the more extreme proponents of abortion may find that many in their Blue tribe adopt a less strident position and state laws will come to reflect that. In both cases, the extremists will lose out.
The actual consequences of Dobbs for most people are likely to be negligible, as most women do not get abortions, and of the ones that do, the majority are concentrated in a handful of Blue states where their right to access abortion will likely continue with little change. The real (un)importance of abortion will be reflected in the coming months as the Current Thing shifts to more salient issues like soaring inflation or an impending recession.
Alongside abortion, climate change has become one of the favoured morality totems for the Bureaucracy to rally its client base around and expand its power over America’s energy producers and businesses, with the EPA taking centre point in this mission. Curtailing the EPA has been a long time cause for the Republicans whose client base includes energy corporations that have been under fire for carbon emissions.
The Court seems to have gifted the Red tribe a win, with the ruling in West Virginia v. Environmental Protection Agency sharply curtailing the authority of the EPA ‘to regulate greenhouse-gas emissions that cause climate change.’ In the world of finance, this comes in the form of ‘ESG’, a framework that among other things measures the carbon emissions of corporations and rates them accordingly. ESG has been used to advance Bureaucratic control over private sector operations and has been heavily questioned as a measure for corporate “sustainability” in its societal and environmental impact.The removal of Tesla from the S&P 500 ESG Index and Exxon’s inclusion shows the ludicrousness of the framework. In general, it’s unclear what America gains from handicapping the ability of its industry to produce goods and services while rival nations like China largely disregard poor metrics like ESG so that their economy can grow.
Next term, the Court will hear two cases that could limit the power of other federal agencies.
The SEC is facing several constitutional challenges. The Court will hear Cochran vs SEC which would have ramifications for Administrative Law Judges (‘ALJs’), who are used regularly by the SEC to adjudicate in cases. ALJs are part of the Executive branch of government and form a parallel structure of judges. Cochran’s defence further argues that ALJs are unconstitutional because while the President (as head of the Executive) appoints ALJs (for the SEC), he cannot fire them. As the SEC heavily relies on ALJs to adjudicate on cases, the Court siding with Cochran against the SEC would result in a significant curtailment of its power to bring cases under Administrative law and must instead rely on ordinary judicial procedures as defined by the Constitution.
Moore v Harper (‘Moore’) could have wide-ranging consequences and is arguably of more importance than Dobbs. If the Court adopts the independent state legislature doctrine, state legislatures would have sole oversight over federal elections. State courts would have no oversight, and could not adjudicate on conflicts between state and federal law. This decentralises some power to state legislatures and centralises some power to the federal judiciary, and in all cases state courts lose out. The largest impact Moore would have is on gerrymandering and oversight of federal elections, and if Red-dominated state legislatures gain sole electoral oversight this could significantly affect the 2024 Presidential elections.
The curtailment of various federal agency’s powers and the expansion of state power lies at the heart of these cases. The Court sees many of the powers enjoyed by the Bureaucracy as unconstitutional, and is either striking them out or (re)transferring them to their constitutionally-endowed institutions. These developments not only show that the constitutional role of the Court is working as intended, but that there is renewed legal and political will to reinforce state rights and decentralisation after decades of centralisation.
III. Manufactured Realities
We live in a world of manufactured realities. The majority of political narratives are lower order issues serving higher order games of power. The vastly misunderstood Dobbs case, and the relative ignorance of the other cases this term, shows how misled the American public and wider world are on the most basic facts of the law, the nature of power, and the narratives in which they swim in unknowingly but make up their entire world.
Both Blue and Red tribes are guilty of deploying emotionally manipulative narratives to jockey their respective voter bases, yet in this case, the divide is between those who stand for centralisation under the Bureaucracy (Blue), and those who stand against it and desire a more decentralised system with a greater emphasis on state rights (Red).
The biggest threat to American democracy is the increasingly inseparable alignment of identity and interests between the Bureaucracy and its Blue client base. With vast swathes of federal agencies under threat of being written out of existence by Court decisions, this is being reflected in Blue tribe narratives about the ‘collapse of government’ to generate hysteria and resistance against this assault on centralised power, and make the case even for more power to the Bureaucracy.
Nonetheless, the Bureaucracy is not The Government even if it wants to be. Increasing fears over the collapse of America’s ‘state capacity’ from Bureaucratic apparatchiks is a signal of their own insecurity, not that of America’s constitutional order, which is arguably being strengthened by re-empowering state rights.
Whether or not the Court is interpreting the Constitution in an earnest manner is not my concern. Preventing the centralisation of power under the Bureaucracy and rendering non-Executive organs of government irrelevant is the shortest path to tyranny and should be the basis of opposition. America’s constitutional order is an extraordinary but delicate machinery that has created what is arguably the most enduring socio-political order in modern history. The Court’s decisions demonstrate its vitality and the power of law to alter the socio-political order and distribution of power, and that the Bureaucracy’s centralisation of power is not inevitable.
With more cases next term for the Court, midterms in November, and the Presidential elections in 2024, the next few years will define the next generation of American culture, law, and politics.
History has been set into motion.
Law and Leviathan’s introductory chapter offers a succinct explanation of the arguments for and against the Administrative State.
Nemesis, by C.A. Bond does an excellent job of summarising Bertrand de Jouvenel’s work On Power, and the hierarchy of power in modern liberalism that defines the centre’s drive for absolute power. De Jouvenel’s model is the underlying political theory behind the argument in this article.
I highly recommend this insightful interview with the late Angelo Codevilla on patronage politics and the Blue/Red divide.
Adrian Vermeule’s article on Clarence Thomas’ concluding opinion in Dobbs considers the future of Obergefell and the realistic possibility that the Supreme Court could overrule the right to same-sex marriage.