After Roe, conservative legal tactics will aim for structural reform

So where would the movement set its sights next? Reversing rights to contraception or same-sex marriage, as some fear? That’s highly unlikely, as Yale Law School’s Akhil Amar has cogently explained. The court’s controversial abortion precedents are uniquely vulnerable to constitutional attack. Most justices have no interest in pressing against a gay-rights consensus that is increasingly deep and broad. And even if they were interested, the legal opportunities would be few and far between.

While the commentariat was fixated on this red herring, conservative appellate judges from the U.S. Court of Appeals for the 5th Circuit (which covers Texas, Mississippi and Louisiana) on Wednesday issued a ruling far more likely to define the next generation of constitutional conflict. The decision in Jarkesy v. Securities and Exchange Commission wasn’t about a culture-war dispute, but the structure of American government itself — and it reflected the conservative legal conviction that a runaway administrative state is a leading threat to American democratic values.

The 5th Circuit’s muscular ruling, arising from a securities fraud case, significantly limits the prerogatives of the SEC. Until now, the SEC could accuse people or companies of financial wrongdoing and determine their responsibility in an internal “administrative proceeding” instead of through a trial in the judicial branch. These proceedings are run by administrative law judges — civil servants who work for the SEC — and the accused do not have the benefit of a jury hearing the case.

The majority of the three-judge 5th Circuit panel blasted this process from multiple directions. It found, first, that those accused in such SEC fraud actions have the constitutional right to a jury trial. Second, that Congress had unconstitutionally granted the SEC, an executive-branch agency, “legislative” power. And third, that administrative law judges are too difficult for the president to remove.

Each of those holdings has a complicated legal basis that may or may not be upheld by the Supreme Court. But together they send a clear constitutional message, which could be applied to agencies beyond the SEC: that executive-branch bureaucracies in their current form are distorting key features of self-government, including democratic accountability, the primacy of Congress and the right to trial by jury.

The Constitution’s most important device for protecting liberty was to divide the federal government’s powers between legislative, executive and judicial branches. But conservative legal scholars have argued that bodies such as the SEC (and its many alphabet-soup siblings) bring all those powers under the aegis of one agency. That erodes the system of checks and balances the Framers hoped would emerge from their creation.

The 5th Circuit opinion argued that “accountability evaporates if a person or entity other than Congress exercises legislative power.” It cites a 2019 case, Gundy v. United States, in which the Supreme Court came close to imposing stricter limits on Congress’s ability to delegate legislative powers to executive officials. (An alarmed Justice Elena Kagan warned that such policing of the boundaries between the branches could render “most of Government … unconstitutional”).

The Supreme Court will be sent many more appeals in cases aimed at constraining the federal bureaucracy in the coming years. Expect this to be the conservative legal movement’s next frontier. It wants to force Congress to take responsibility for legislative decisions, rather than passing the buck to unelected civil servants.

Progressives have recently prioritized “structural reform” to reinvigorate American democracy. By this, they often mean the liberalization of voting rules, the addition of states to the union, the elimination of the electoral college, the prohibition of gerrymandering and even the expansion of the Supreme Court. This is intended to make the U.S. government more responsive to majorities, but the countervailing power of unelected bureaucracies to work their will with minimal democratic oversight is rarely addressed.

Conservatives have a different view of “structural reform.” They’re less concerned with expanding democracy in the abstract, and more concerned with structuring it in such a way that government power can be constrained and constitutional rights durably protected. That puts unaccountable administrative agencies in the crosshairs.

The overturning of Roe wouldn’t signal the start of a radical rights rollback by the Supreme Court’s conservative majority. Instead of the culture wars of the 20th century, the court after 2022 may increasingly be defined by timeless debates about how a liberal democracy should be structured.