On Tuesday, the U.S. Supreme Court will hear a little-covered case that has the power to wipe away safeguards for any and all regulations that govern Americans’ daily lives.

Plaintiffs in the case, which is ostensibly about a convenience store’s challenge to debit card fee limits, are backed by big business and groups tied to the conservative Koch network, and they’re asking the court to overturn a longstanding statute of limitations that currently protects federal rules from certain legal challenges once they’ve been finalized for six years. If they win, it could unleash an onslaught of attacks on all federal regulations, most of which Americans likely don’t even know protect them.

“Health, safety, the economy, food and drug safety, the environment — basically everything that we take for granted has been protected by [federal] agencies,” said Devon Ombres, the senior director of courts and legal reform at the public policy advocacy group Center for American Progress, who co-authored a report last week that warned the case “could open a pandora’s box” for federal deregulation. 

As the consumer advocacy group Public Citizen noted in its amicus brief in the case, the statute of limitations, which is outlined in the Administrative Procedure Act of 1946, has been used to fend off challenges to decades-old regulations that restrict oil and gas use of public lands, set minimum wages for farm workers, and govern employers’ ability to secure work visas for temporary foreign workers, among others.

The case, Corner Post v. Board of Governors of the Federal Reserve System, is being litigated by the same powerful conservative law firm that ended affirmative action in July and blocked President Joe Biden’s student debt relief, in the hopes that once again, an increasingly right-wing high court will rule in its favor. Tyler Green, the lead lawyer for the plaintiffs, once clerked for Clarence Thomas — and is also the administrative trustee for Leonard Leo’s massive dark money fund, the $1.6 billion Marble Freedom Trust.

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Major pro-business groups — including the U.S. Chamber of Commerce — and a host of right-wing groups tied to Koch family foundations, like the Cato Institute, have lined up to support the Corner Post case, filing briefs urging the justices to grant a favorable ruling. The court will hear arguments from both sides on Tuesday.

The Corner Post case is one of several on the Supreme Court’s docket this term that, Ombres said, were “aiming death blows at federal agency authority,” with the robust support of special interests.

“A Never-Ending Avalanche Of Litigation”

The plaintiff in the Corner Post case is a small roadside convenience store in North Dakota. In 2021, the store joined a lawsuit brought by local trade associations that challenged the specifics of a federal rule capping debit card “swipe fees,” a major moneymaker for big banks and credit card companies. According to Corner Post, the fees allowed by the rule were excessive and not proportional to the service costs incurred by banks who issued the debit cards.

That rule, a provision of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, was finalized by the Federal Reserve Board in 2011. 

The Administrative Procedure Act, passed in 1946, only allows “facial challenges” — lawsuits that argue a federal regulation is illegal and ask a judge to strike it down — to such rules for the first six years after they are finalized. Proponents of this sort of statute of limitation, which has stood for decades, say it allows the country to operate with a relatively stable regulatory environment.

So after 2017, if a person or business wanted to challenge the debit card fee cap, they had to do so in other ways, such as by petitioning the Federal Reserve. Such alternative processes usually take longer and provide agencies “an opportunity to invite public comments and review a full record of up-to-date evidence,” according to Public Citizen’s brief — scrutiny and transparency big business would likely prefer to avoid.

Lawyers for the convenience store are arguing that the Administrative Procedure Act intended the six-year window to begin whenever an entity is impacted by a rule, not when the rule was finalized — even if that event occurred years or decades after the rule was put in the books. In the case of the Corner Post store, plaintiffs say the six-year time limit should have begun in 2018, the year the convenience store opened its doors.

In other words, the Corner Post case aims to effectively do away with the statute of limitations for government rules entirely.

“By [Corner Post’s] logical conclusion, any newly created entity could sue to challenge any regulation ever written,” said Ombres at the Center for American Progress. 

Nick Sansone, a staff attorney at Public Citizen, echoed this conclusion. “Pretty much every regulation will be open to lawsuits brought by interested parties, often in the court of their choice, often with no public participation built into the process,” he said.

In 2019, for instance, agriculture industry groups in Nevada launched a challenge against federal wage rules, hoping to avoid paying higher wages to temporary farm workers. Pro-labor groups, including Public Citizen, intervened, saying the challenge had been filed after the six-year statute of limitations. The labor advocates won, saving workers potentially $123 million in lost wages.

If the Supreme Court rules in favor of Corner Post, the outcome of such cases may look very different, as corporate interests could flood the courts with challenges to longstanding environmental and consumer protections. Such a scenario could also be economically disruptive, experts say.

“This case could have profound implications for the nation’s small businesses and the country’s economy,” said Skye Perryman, the president of Democracy Forward, a public interest legal group that has filed a brief in the case representing several small business interest groups, including Small Business Majority and the American Sustainable Business Council.

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Stability is important in federal regulation, Perryman explained. “The real concern here is that what you will have is a never-ending avalanche of litigation against long-standing regulations that will destabilize the rules of the road for industries,” she said.

Yet the special interest groups backing the Corner Post case — and others like it — are risking such disruption in their pursuit of deregulation. 

“I think they speak for a very particular, motivated group that doesn’t mind sowing a little bit of chaos, or potentially quite a bit of chaos, to free themselves from regulatory regimes that they see as burdensome,” said Sansone with Public Citizen.

“Multi-Billion-Dollar Right-Wing Legal Apparatus”

A whole host of right-wing think tanks and business interest groups have filed amicus briefs supporting the plaintiff, including the Cato Institute, the Pacific Legal Foundation, the Americans for Prosperity Foundation, the Manhattan Institute, and the New Civil Liberties Alliance. As Ombres and the Center for American Progress noted this week, all have ties to the Koch network, and have been involved in a host of corporate-funded attacks on regulation.

These groups have framed Corner Post and similar cases as necessary pushback to federal overregulation. The Cato Institute, a libertarian think tank, wrote in its November amicus brief on the matter that the case was “essential to ensure that Americans are not unlawfully injured by overzealous bureaucrats,” citing the “immense and growing reach of the administrative state.”

Billionaire Charles Koch co-founded the Cato Institute in the 1970s, and various Koch interests have donated more than $13 million to the think tank since 2012. 

The “administrative state” has long been a key focus for the Cato Institute and related groups, as they’ve championed a flurry of cases challenging government regulations that are before the Supreme Court this term. 

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The cases include SEC v. Jarkesy, which could dramatically undermine federal agencies’ enforcement authority; Loper Bright Enterprises v. Raimondo, which would overturn a landmark  case that protects the ability of agencies to set policy; and CFPB v. CFSA, which could completely decimate the Consumer Financial Protection Bureau, a key consumer protection agency.

“The Corner Post case is one in a series of concerning cases that are really challenging the ability of our government to serve and deliver for people,” said Perryman at Democracy Forward.

And backing these cases, Ombres said, was “the same multi-billion-dollar right-wing legal apparatus that is supporting these blows against government function, time and time and time again.”

On Tuesday, both sides of the case will present their arguments to the Supreme Court and answer justices’ questions on the matter, likely providing a clearer picture of where the high court stands on the issue. “This issue isn’t really like anything that the court has seen in recent years,” Sansone explained, which he said made it difficult to predict where the justices would fall on the legal questions involved.

“It’s hard to say what they're going to do,” he said. “Hopefully many of them will be alarmed by the potential consequences of ruling in favor of the petitioners here.”

Corporations Have Been Salivating Over This SCOTUS Decision 

The Supreme Court seems to have no problem regulating women’s bodies. But when it comes to regulating big business, they may be ready to end 40 years of established law. Let me explain.

The Court is hearing a pair of cases that could upend federal regulations designed to protect us. At risk is the Biden Administration’s entire climate agenda, the power of the government to approve and regulate drugs, and even the safety and quality of the food we eat, the water we drink, and the air we breathe.

And big corporations are salivating for a ruling that goes their way.

So what’s putting all of this at risk? It’s a challenge to something known as the “Chevron” Doctrine, a legal precedent established by the Supreme Court’s ruling in the 1984 case Chevron v. Natural Resources Defense Council. That case held that whenever any regulation in a law is unclear, it should be the federal agencies, not the courts, that interpret and implement it. This makes sense because unlike courts, federal agencies are staffed with scientists, researchers, and engineers — actual experts in the fields they’re regulating.

But now, a pair of Supreme Court cases challenging the doctrine could shift this power to the courts, stripping federal agencies of this key role of interpreting and implementing our nation’s laws.

If non-expert courts become the sole interpreters of the nation’s laws, a single activist judge, carefully selected by plaintiffs, could invalidate all the regulations of a federal agency charged with protecting the public.

No wonder the big banks, fossil fuel companies, and pharmaceutical giants, who hate the power of federal agencies to limit their profits, have been trying for years to end the Chevron Doctrine. And this time, they think they have the votes on the Supreme Court to do it.

If agencies are stripped of their power to regulate, the big losers will be the American public. We need real experts tackling today’s complicated problems, not judges who think they know better.

We also need to see the potential fall of the Chevron Doctrine for what it is: a power grab by corporate interests, allowing them to shop for judges who will strip agencies of their power to protect the public.

In Tyranny of the Minority: How to Reverse an Authoritarian Turn and Forge a Democracy for All, Steven Levitsky and Daniel Ziblatt consider the institutions and practices of counter-majoritarianism in the United States. The book effectively demonstrates that American democracy is under attack, but the authors’ proposals for constitutional amendments to help end that attack are unlikely to be implemented, writes Larry Patriquin.

Tyranny of the Minority: How to Reverse an Authoritarian Turn and Forge a Democracy for All. Steven Levitsky and Daniel Ziblatt. Viking. 2023.

Find this book: 

A spectre is haunting America – the spectre of Donald Trump, the loose cannon who defeated his competitors for the Republican Party nomination in 2016 and then went on to shock the world by winning the presidency. From that point on, almost all Republican politicians offered their support to him, while the few remaining GOP dissidents were effectively silenced. It all ended badly, however, with Trump’s refusal to accept his defeat in November 2020 and the ensuing coup attempt, which he encouraged, in January 2021.

As late as the 1960s, the Democrats and Republicans were “big tent” organisations dominated by white Christians. As a result, they had much in common

So, how did we get here? Steven Levitsky and Daniel Ziblatt argue that as late as the 1960s, the Democrats and Republicans were “big tent” organisations dominated by white Christians. As a result, they had much in common, so both were able to vote overwhelmingly in favour of important legislation, including the 1964 Civil Rights Act and the 1965 Voting Rights Act. But shortly thereafter, the Republicans began to pursue a hardcore “white party” strategy as the best way to win elections, drawing southern white voters away from the Democrats. This process solidified by the time of Richard Nixon’s re-election in 1972 and was mostly complete with the GOP’s embrace of burgeoning Christian fundamentalism in the 1970s and 1980s.

The United States is now a country where electoral minorities, rooted in a mostly white, rural-based party, can consistently rule over and dominate a multiracial, highly urbanised society.

Today, however, the Republicans are trying to scupper democracy. They realise they cannot win elections if they play by the rules, because they have for the most part abandoned the vast majority of non-white citizens, in a society that is becoming more diverse with each passing year. This has had profound effects on American governance. Representative democracies are supposed to ensure that majorities can implement their favoured policies and are able to do so relatively easily and peacefully. But the United States is now a country where electoral minorities, rooted in a mostly white, rural-based party, can consistently rule over and dominate a multiracial, highly urbanised society.

This turn toward authoritarianism has unfolded because of the US’s counter-majoritarian institutions and practices.

This turn toward authoritarianism has unfolded because of the US’s counter-majoritarian institutions and practices. These include, among others: (1) a politicised Supreme Court, in which six of its nine justices regularly contribute to rulings that are reactionary and antidemocratic; (2) the apportionment of two senators to each state (the same number, for instance, to Wyoming’s 580,000 residents as to California’s 39 million); (3) a constitution that is almost impossible to amend (aside from a minor amendment in 1992 on Congressional salaries, the last successful amendment was in 1971 – that is, more than 50 years ago – when the voting age was lowered to 18); (4) the Electoral College, which enabled Donald Trump to capture the presidency in 2016 even though he lost the popular vote by 3 million votes; and (5) the Senate filibuster, which requires 60 votes for a bill to proceed to the floor, hence serving as an effective veto of potential legislation by 41 senators.

In sum, “in America majorities do not really rule” (225). In response, Levitsky and Ziblatt make ten general recommendations on how to move forward, including having the government register voters, creating independent redistricting commissions in every state, and abolishing the Senate filibuster. There is a reasonable possibility that most of these reforms could be implemented.

This is not the case, however, for their additional five recommendations, which would necessitate constitutional amendments. They would like to: (1) enshrine the right to vote; (2) abolish the Electoral College; (3) have Senate seats distributed more in line with each state’s population; (4) create term limits for Supreme Court justices; and (5) revise the Constitution’s amendment process by removing the requirement to have three quarters of the states approve each proposed amendment.

They point to the abolition of slavery and the extension of suffrage to women, both of which were forward-looking ideas at one time, but were eventually implemented

Levitsky and Ziblatt anticipate my main objection to their constitutional proposals: that if they “make sense in theory, aren’t they utterly unrealistic in practice?” (236) They argue, though, that while there would be serious obstacles to their passage, these amendments are within the realm of possibility and so should at least be debated. They point to the abolition of slavery and the extension of suffrage to women, both of which were forward-looking ideas at one time, but were eventually implemented, even if they took a century or two to accomplish.

They suggest that the “unrealistic” criticism could come down to the perception that the “reforms we propose might appear radical” (236). They add that the refusal to at least air these reforms is problematic, noting that if “an ambitious idea is ‘unthinkable’,” then “the battle is lost” (238). However, the content of Levitsky and Ziblatt’s proposals is neither ambitious nor radical. As they observe, they are recommending laws and regulations similar to those in place in just about every nation outside the US.

Previous landmark constitutional amendments occurred during and after extended calamities, including the Civil War, World War I, and the massive civil rights movement of the 1960s. I am not sure the successes created in these instances could be replicated today

Still, their proposals are unlikely to pass, at least any time soon. This is because previous landmark constitutional amendments occurred during and after extended calamities, including the Civil War, World War I, and the massive civil rights movement of the 1960s. I am not sure the successes created in these instances could be replicated today, especially given that – as the authors effectively demonstrate over hundreds of pages – the Republican Party and its supporters have detached themselves from democracy, from the law, and even from reality.

The current political climate in the US is much more toxic than it was a half century ago

The current political climate in the US is much more toxic than it was a half century ago, yet throughout the 1970s advocates could not get final approval from enough states to support the Equal Rights Amendment, which passed in Congress in 1972. It would have enabled the following sentence to become part of the Constitution: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” If something so basic, something almost no sentient being would oppose, could not find its way into the Constitution, then none of the authors’ proposed amendments, all of which would significantly reduce the power of Trump-crazed Republicans, seem to have any chance of ratification.

At the time of writing, Donald Trump held a massive lead in polling for the Republican primary – with more support than all other candidates combined – so barring an asteroid hitting the earth, he will be the Republican nominee for president in 2024, and he could very well defeat Joe Biden (the two are currently running neck-and-neck in the polls). If that happens, or if Trump loses and he again cheers on his violent sycophants as they rampage through Washington, the US will not be in a position to enact sensible constitutional amendments, even ones that are relatively uncontroversial – even one which, for instance, would declare that women are equal to men.

This post gives the views of the author, and not the position of the LSE Review of Books blog, or of the London School of Economics and Political Science. The LSE RB blog may receive a small commission if you choose to make a purchase through the above Amazon affiliate link. This is entirely independent of the coverage of the book on LSE Review of Books.

Image Credit: tai11 on Shutterstock.

A federal court has ruled that citizens may not sue governments that commit crimes against voting by Americans of color — and that only the government, that is, those who commit the voting crimes — may sue. Tellingly, ... READ MORE