The goal here is pretty obvious: The conservative legal movement has not been subtle. In 2017, then–White House Counsel Don McGahn said in a speech to the Federalist Society that “the greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against that threat is a strong judiciary.” Shortly after, President Trump nominated Gorsuch for a seat on the U.S. Supreme Court.
A revived nondelegation doctrine would give conservatives a useful tool to beat back laws adopted under a Biden administration. Judges have no principled way to identify statutes that delegate too much power or power of the wrong kind, a point made most eloquently by Justice Antonin Scalia. But if Michigan is any guide, Republican judges will be especially eager to find that the line has been crossed once Democrats are in charge.
It’s all so transparently partisan, yet conservative judges have the gall to claim to be speaking for the people. (“The separation of powers is fundamental to democracy,” as the Michigan Supreme Court piously said.)
Torching a democratically enacted law doesn’t respect democracy. In Michigan, doing so shifted power to a legislature under Republican control thanks to extreme gerrymandering. In 2018, Democratic legislative candidates in Michigan won hundreds of thousands more votes than their Republican opponents. Yet Republicans have a 58–52 majority in the House and a 22–16 majority in the Senate.
The nondelegation doctrine isn’t about democracy. It’s about the power to restrain government. And it will be wielded as opportunistically against a President Biden as it has been wielded against Whitmer.
As a result of last week’s decision, Michigan became the only state in the nation that is not operating under some type of state of emergency.
For now, that doesn’t mean the end of all COVID-19 protections. The state’s public-health director has the independent power, not at issue in the Supreme Court’s decision, to take emergency actions to control epidemics. On Monday, the director issued a series of orders incorporating the governor’s prior restrictions, including her mask mandate and limits on gatherings. These orders, too, will surely be challenged.
The larger lesson is that Republican judges are serious about using their power to obstruct Democrats in office, even when doing so is legally indefensible and blatantly undemocratic—indeed, even when it jeopardizes human life. There’s no reason to expect a conservative supermajority on the United States Supreme Court to act with more restraint. The Republican-appointed justices have the votes to impede pretty much anything Democrats aim to do, whether that’s mitigating climate change, expanding access to health care, or extending statehood to Puerto Rico or Washington, D.C.
We may all be Michigan soon.