They All Got Together

It's nice to know that the Justices of the Supreme Court still have enough principles in common to agree unanimously on a case, the most recent one having to do with restraining the bureaucracy.

The Supreme Court on Friday dealt the administrative state another blow with a 9-0 decision holding that individuals and businesses harpooned by an independent agency don’t have to suffer a torturous government adjudication to challenge its constitutionality in federal court (Axon Enterprise v. FTC and SEC v. Cochran).

Certain agency rules--in this case the FTC and the SEC--may be unconstitutional, but according to the agencies the plaintiffs must first ask administrative judges to rule on constitutionality before the plaintiffs can appeal to the judicial branch.

In these situations and others the additional delay can be fatal to what the plaintiffs are trying to accomplish. The agencies do not say that they're running out the clock to get their way, of course, and Justice Kagan called them out in her controlling opinion:

“This Court has made clear that it is ‘a here-and-now injury,’” she writes, citing its Seila Law (2020) precedent. “And—here is the rub—it is impossible to remedy once the proceeding is over, which is when appellate review kicks in.”

Let's see if the agencies abide by the rule of law when the decisions go against them. They should, if they expect an increasingly testy population to comply with the volumes of rules and regulations they produce.