This term, the U.S. Supreme Court will hear several cases that could radically alter the ability of the federal government to serve people and communities. This is not just a disagreement over the size of the government’s role in people’s lives. If successful, the attacks being lodged this term will undermine our government’s ability to work for all of us.
These attacks–from the same highly-coordinated, well-funded anti-democratic extremists pushing the Big Lie–being lodged this term seek to undermine our institutions and the government’s ability to deliver for people. The far-right narrative around these cases is abstract in an effort to skirt accountability for the real-world impacts the outcomes will have on our everyday lives. At Democracy Forward, we have created resources to help sort through the noise and demystify the legalese behind these threats to our democracy.
The People’s Guide to the Anti-Democratic Legal Playbook helps break down some of the most common legal tools and theories in the far-right playbook and unpacks all that’s at risk if we don’t fight back.
What is “Chevron Deference”:
Long-standing precedent that if Congress has charged an agency with making a policy choice, the agency is best positioned to reach a reasonable decision, not the courts.
Why should we care?
An attack on this doctrine would limit the ability of subject matter experts at federal agencies to interpret and implement policies and deliver for people.
What’s an example?
When the question of whether the Environmental Protection Agency had the authority to enforce pollution controls at industrial facilities under the Clean Air Act, judges applying Chevron deference accepted EPA experts’ interpretation of ambiguous laws as long as the interpretation was reasonable. Extremists would have courts apply their own policy preferences instead.
What is “Major Questions Doctrine”:
A legal argument that the far-right legal movement and special interests use to challenge and provide a basis for judges to reject seemingly any program or government action they disagree with.
Why should we care?
Its expanding use could create nearly insurmountable hurdles that prevent Congress and executive agencies from solving real problems.
What’s an example?
The Supreme Court relied on this argument to say the Biden administration did not have the authority to implement its student debt relief program.
What is the “Shadow Docket”:
When a case is decided on a rushed timetable without a full opportunity to provide arguments and with limited explanation by the majority.
Why should we care?
Using the shadow docket for non-emergency but monumental decisions runs counter to the tenets of transparency and the rule of law.
What’s an example?
At the height of the Covid-19 pandemic, the Supreme Court struck down public health protections using brand-new legal rules with virtually no explanation.
What is the “Administrative State”:
The constellation of federal agencies that interpret laws, craft federal rules, and implement executive actions.
Why should we care?
When the administrative state is under attack, the ability of the federal government to function effectively and deliver key programs and protections is at stake.
What’s an example?
The administrative state puts policy into practice–including by implementing programs like Medicare and Social Security.
What is the “Appropriations Clause”:
The constitutional provision used by Congress for more than two centuries to control how the federal government spends funds.
Why should we care?
If far-right actors and special interests are successful in their radical application of this provision, they could eviscerate the independence of several federal agencies.
What’s an example?
Extremists have reinterpreted the Appropriations Clause in attempts to hobble the Consumer Financial Protection Bureau and declare it unconstitutional.
What is the “Nondelegation Doctrine”:
Lets Congress delegate decisions to the executive branch as long as it provides a standard for making those decisions.
Why should we care?
Extremists are trying to rewrite the doctrine to strike down virtually any statute where Congress relies on the executive branch to use its judgment in implementing congressional policy. This radical theory would make it impossible for Congress to address almost any modern problem, from climate change to workplace safety.
What’s an example?
The far right has used this doctrine to claim that the Securities and Exchange Commission’s (SEC) structure and enforcement powers are unconstitutional in an effort to curb the SEC’s regulation of business interests.
What is “Standing Doctrine”:
Determines who gets to have their voices heard in court.
Why should we care?
The far-right legal movement has tried to twist the standing doctrine to make it easier for plaintiffs they agree with to access the courts, while keeping those they disagree with out.
What’s an example?
The Court raised standing barriers to prevent people from suing tech companies who misused their data, but lowered standing barriers to allow people to challenge anti-discrimination laws that they dislike.