Here's why conservative Supreme Court justices are making plans to undercut Joe Biden

On Saturday, writing for Vox adapted from his upcoming book on the law, Ian Millhiser outlined a key reason why Republican-appointed Supreme Court justices like Neil Gorsuch have adopted such a hardline stance against the delegation of congressional power to officials in the executive branch — a legal theory known as "nondelegation" that could undermine President Joe Biden's ability to write rules protecting everything from workers to the environment.

In Millhiser's reckoning, this is actually a relatively new development within the conservative legal movement. A few decades ago, conservative judges were much more approving of executive power — indeed, noted Millhiser, right-wing judicial icon Antonin Scalia was a fierce defender of "Chevron deference," the precedent that courts should avoid second-guessing the opinions of executive branch administrative experts when possible. This was once seen as the classically conservative judicial philosophy, skeptical of using the courts to second-guess political and policy decisions on political and policy grounds.

What changed, argued Millhiser, is not the law, but the politics. Republicans went from being a party that dominated the presidency to one that lost seven out of the last eight popular votes for president.

"Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections," wrote Millhiser. "So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate."

"But the right's approach to federal agencies shifted drastically during the Obama administration," wrote Millhiser. "With the GOP's grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary's power to strike down new rules pushed by federal agencies. By Obama's second term, the conservative Federalist Society's national lawyers convention became a showcase of proposals to deconstruct the administrative state."

The upshot of this is that a justice like Gorsuch — who holds the seat that was once Scalia's and is widely considered in almost every respect to be his ideological heir — now consistently signals his hostility to the delegation of power to the executive branch. And if he has his way on the now 6-3 Republican-appointed court, the casualty could be Biden's presidency.

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