What Does the Election Mean for High Court?

Oct. 7, 2008 — -- Congress got its back up last week over the prospect of padding the president's already formidable authority with a proposed bailout bill that gave Treasury Secretary Henry Paulson virtually unchecked power to spend $700 billion rescuing the financial sector.

So 451 pages and countless arm-twists later, the House and Senate imposed their will on the bill with oversight committees and other bells and whistles that made the bailout politically -- as well as constitutionally -- palatable.

There was a time, though, when even those safeguards might not have been enough to pass constitutional muster. Until the late 1930s, the Supreme Court usually struck down laws giving the president freedom to do things such as save the economy.

Though the court backed off after the New Deal, some prominent federal judges still yearn for that era. We don't know what they think of the bailout package, but if their views take hold on the high court, you can probably say goodbye to many of the regulations that have made workplaces safer, the environment cleaner and, truth be told, Wall Street more transparent than it would be otherwise.

So on this first week of the Supreme Court's new term, what are the chances that any of these judges will become justices? If Barack Obama wins, forget it. But if John McCain is elected, they could be near the top of his list.

It all comes down to the Sick Chicken Case.

In 1934, a slaughterhouse called the Schechter Poultry Corp. of New York was convicted of selling an "unfit chicken" to a butcher, among other violations of the Live Poultry Code. President Franklin Roosevelt approved the code the year before, one of several that Congress authorized under the National Industrial Recovery Act to get various industries back on track during the depression.

Schechter's appeal of its conviction eventually reached the Supreme Court, where the company argued that the poultry code was unconstitutional because it had been approved by the president rather than Congress, and only Congress had the power to make laws.

The high court agreed with Schechter, overturning his conviction and defining what's now known as the Nondelegation Doctrine: "Congress cannot delegate legislative power to the president to exercise an unfettered discretion to make whatever law he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry."

New Deal supporters eventually prodded the court to change its mind, and since 1937, the justices have allowed Congress to delegate its lawmaking power so long as it gives the president an "intelligible principle" -- basically a rough outline -- to follow in creating specific rules and regulations. That's why executive-branch agencies such as the Securities and Exchange Commission, the Food and Drug Administration and the Federal Election Commission can now specify how corporations can sell securities, drug firms can peddle medicine and candidates can spend campaign cash.

But not all judges are happy with the Supreme Court's change of heart 70 years ago. In 1999, for example, the U.S. Court of Appeals in Washington, D.C., struck down the Environmental Protection Agency's standards for regulating air pollution. In passing the Clean Air Act, the court said, Congress had not given the EPA enough guidance -- an "intelligible principle" -- for setting air pollution standards, and so the agency had acted under an improper delegation of Congress' power.

The ruling seemed a throwback to the 1930s, and it was reversed by the Supreme Court. But it also showed that some powerful judges still believe that the oodles of regulations emanating from the executive branch are sometimes a constitutional mistake.

One of those judges is Douglas Ginsburg, who voted with the majority in the EPA case. Ginsburg may be best known as the guy who admitted to having smoked pot when he was a law professor, thereby blowing his nomination to the Supreme Court by President Reagan. But he is also known for an influential 1995 article in which he criticized courts for deferring to regulatory agencies and downplaying the pre-New Deal limits on the delegation of Congress' lawmaking power.

Another judge with similar views is Janice Rogers Brown, also a member of the D.C. court of appeals. In a case decided earlier this year, she backed an argument that the Bureau of Indian Affairs had given Michigan land to an Indian tribe without proper authorization from Congress. A majority of the court's judges disagreed with her, but she dismissed them as stripping the "nondelegation doctrine of any meaning."

Ginsburg lost his shot at the Supreme Court, but Brown joined the appeals court with John McCain's support, and she -- along with the likes of Edith Brown Clement of Louisiana and Jeffrey Sutton of Ohio -- have been mentioned as the type of judge he would appoint to the high court, and that the Republican right has favored over the past eight years.

These judges are remarkable not for their position on abortion or the death penalty or any of the other high-decibel issues that come before the court. They stand out for their deep belief in limits on expansive programs such as the $700 million bailout and federal power in general. And with at least one of their ideological soulmates -- Clarence Thomas -- already on the high court, their ascension to that bench could move the court to make profound changes in how the federal government does business.

This election will no doubt determine the future of the Supreme Court, but when you think about how, here's a tip: pay less attention to Roe v. Wade and more to the Sick Chicken Case.