On May 29, 1935, in the midst of a Great Depression that would not end, the Supreme Court struck down a central piece of legislation of Franklin Delano Roosevelt’s New Deal, the National Industrial Recovery Act. In Schechter Poultry Corp. v. United States, the court ruled that the entire scheme violated the U.S. Constitution.
It was a landmark case because the Supreme Court was directly challenging both the executive and legislative branches. It said: They have gone too far and, therefore, all of the legislation and regulation is illegal. As a result, the most elaborate central-planning scheme ever imposed on the U.S. economy was deleted.
The fury in Washington about this decision had never been higher. The Roosevelt administration struck back with a major plan to add justices to the court. It was called the “court-packing scheme” at the time. It did not work, but the goal was clear. FDR wanted the “conservatism” of the court reversed by watering down the power of the majority and thereby clearing a path for his economic projects.
This is the deeper history behind any Supreme Court attempts to limit the power of the other branches. It is supposed to be part of the court’s job, in theory. In practice, it is much more difficult. Anytime the court bumps up against a major political priority, it risks the wrath of the party in power, particularly the presidency. This is why it happens so rarely.
The constitutional system is built with checks and balances that can be easily disturbed and distorted. For any presidential administration to act against the authority of the court through fundamental reforms, especially when doing so is clearly motivated against a decision that the rest of the government does not like, is deeply dangerous. That’s because it is always directed toward one end: enhancing executive power and reducing the role of the court in exercising effective oversight.
The Schechter case is what prompted FDR to act. It was an attempt to disable the court’s power to override the political priorities of the executive branch.
In our times, the Supreme court has earned the wrath of the executive branch by reversing a doctrine called Chevron deference. Since the decision that set that precedent in 1984, executive agencies have benefited from a judicial system that permitted them to interpret congressional intent as they saw fit. This has had a slow but profound effect on business and civic life generally.
In 2024, in Loper Bright Enterprises v. Raimondo, the Supreme Court found that the Chevron decision was wrongly decided and reversed it. The new rule is that Congress must be very specific about what it legislates. Agencies cannot expect their every new rule, tax, or edict to pass through without question. In practice, this amounts to a huge curb on the power of independent agencies that ostensibly operate under the executive branches. We are talking about more than 400 agencies here, plus millions of employees. It is a major source for the advance of what’s called “big government” in American parlance; that is, rule by agency edict.
In short, the Supreme Court seems to have cast major doubt about the agency-made rules of fully 40 years, which amount to probably hundreds of thousands of pages of federal regulations. It’s all in question and suddenly.
It was a bold but absolutely necessary decision by the Supreme Court. It is already resulting in a large flurry of litigation in every single industry. The courts will need only cite the Chevron reversal to strike down a potentially vast number of regulations that are currently on the rule books in the Federal Register. This decision has the potential to upend some 40 years of regulatory power as exercised by the permanent civil service.
In the background of this decision stands some major efforts by the Trump administration at the end of his term to bring more presidential authority over executive agencies. This new rule creating Schedule F employees, a category of federal worker that would be easier to fire, was born of bitter experience from 2016 and following, but especially of the year 2020, when public health bureaucracies massively overreached with every manner of guideline for the control of infectious disease. (Schedule F existed only briefly before being repealed by the new administration.)
Among the guidelines was a March 12, 2020, announcement from the Centers for Disease Control and Prevention to encourage mail-in ballots. This massive expansion of mail-in voting had a profound effect on the outcome of the election. It was exactly the sort of agency-driven rule change that was enabled by 1984 Chevron deference and is now reversed in the new decision. These days, in other words, such a rule would not likely be permitted outside a congressional vote.
The power and reach of federal agencies is suddenly in play in U.S. political life in ways that it has not been since the New Deal. And this is why we are seeing efforts to curb the court’s power. The Biden administration in its waning months in office has proposed new term limits and agency oversight of the court itself. This would have a massive impact on the ability of the Supreme Court to exercise its constitutional authority in judging the legality of government itself.
There is much at stake, and everyone knows it. It speaks to the core issue of the Constitution. The notion of checks and balances presumes an independent judiciary that can rule on the legitimacy of actions by the other two branches. If by doing so, they elicit some big reform that curbs their range of influence and power, that is deeply disruptive of the constitutional structure and the rule of law itself.
If you really want to understand the driving issues of U.S. political life today, you have to dig beneath the headlines about cultural and social issues. Whether it is Chevron, Schedule F, or even Project 2025 (which proposes deep cuts in the power and reach of the administrative state), the truly burning questions today all speak to the power and authority of executive agencies.
I’ve been involved in ideological and intellectual circles for decades and never before have I seen anything like the new consciousness that has developed over agency power. What seemed to have put this issue into focus were the lockdowns, the press censorship, and agency resources being used for partisan purposes. These agencies have presumed power that the U.S. Constitution never granted.
The movement to put an end to this is gaining steam on several fronts, and this is creating a major “circle the wagons” effort to stop any rollback of administrative agency power or anything that would interfere in the political independence of the federal civil service.
All headlines aside, this is the core issue now roiling politics in the United States. It all comes down to the great question of who is in control. Some people have the notion that the answer should be the people through their elected representatives. The Supreme Court seems to agree, and that is precisely why the court is in hot water right now.
