There are really only two branches of government
© Greg Nash

The Obama administration had a tough week in the courts last week. Its deferred deportation plan was effectively ended by the Supreme Court. And a federal judge in Wyoming stalled regulations from the Department of the Interior regarding fracking on federal lands. These decisions come on top of a number of other court decisions slowing or stopping Obama administration regulations.


This is not exclusive to the Obama administration. Courts also in numerous circumstances put the brakes on many of the George W. Bush administration's efforts to deregulate (see here and here). On the other hand, the courts have given the OK to many Obama administration regulations, including key decisions on net neutrality and mercury pollution.

These varied decisions highlight the fact that any major regulatory decision ends up in the hands of the courts. Courts decide whether the executive branch exceeded its authority in issuing the regulation, and whether regulation is valid, invalid or needs adjustment. The executive branch then reacts to the court decision. Regulation has increasingly become increasingly a primary way that policy is made in Washington. One branch of government is largely absent from the practical issues surrounding regulation: Congress.

Sure, Congress makes noise about reforming the regulatory process and gaining more of a voice in regulatory decisions. On rare occasions, members actually pass a statute to solve a policy problem that will direct the executive branch in issuing regulations. But their efforts at regulatory reform are often doomed to failure, as are their attempts to invalidate individual regulations.

Many reasons have been given for Congress's absence from the vast policymaking space represented by regulation. Congress has incentives to avoid the hard policy decisions and instead blame the bureaucracy for them. Geographic sorting by ideology of the American public has been blamed for the increased polarization in Congress, which has rendered it ineffective. Congress does not have the capacity to deal with an increasing array of complex issues (it last expanded in 1912, when each member of the House represented 200,000 constituents; now each one represents 700,000).

But whatever the reason, practical debates over regulatory policy (or nearly any executive action) are largely conducted between the courts and the president. As much as any of us may disagree with some recent court decisions, the courts have largely done a thoughtful job with this important task, approving some executive actions and forcing modification or abandonment of others. But there are two reasons to be concerned about the court's capacity to serve as a check on the executive branch.

The first reason is that Congress, bereft of its own power to check the executive, is making it harder for courts to do so. As the confirmation of judges becomes harder and harder (a trend exemplified but not limited to the refusal to consider Judge Merrick Garland for the Supreme Court), courts lose the capacity to hear challenges to regulations. If this trend continues, decisions on whether regulations are valid are more likely to be random than reasoned.

Secondly, and more important, one of the two major party candidates for president does not seem to think it is out of bounds to threaten judges or question their authority. As upset as President Obama must be about decisions invalidating his actions, he has never pursued those actions once a court has decided to overturn them. There is ample reason to think that a President Donald TrumpDonald John TrumpFederal prosecutor speaks out, says Barr 'has brought shame' on Justice Dept. Former Pence aide: White House staffers discussed Trump refusing to leave office Progressive group buys domain name of Trump's No. 1 Supreme Court pick MORE would feel no such compunction. The authority of the courts depends on the respect we accord their decisions. If the courts are ignored and Congress is paralyzed, then we may be down to one branch of government.

Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.