Notice & Comment

Abortion, the Supreme Court, and Passive-Aggressive Administration

The Supreme Court’s latest abortion cases, being argued this morning, aren’t actually about abortion. They’re about administration, and the role of courts in it.

At least, the point I try to make this morning in a short essay elsewhere, which may be of interest to Notice & Comment‘s readers.

It’s natural for Court-watchers to group the Texas cases together with next month’s Dobbs case, the latest chapter in the nation’s nearly five-decade debate about Roe v. Wade. But when the Court issued its initial order in September, declining to preemptively block enforcement of Texas’s Heartbeat Act, a line in Chief Justice Roberts’s dissent should have piqued the interest of administrative law experts:

The statutory scheme before the Court is not only unusual, but unprecedented.”

The line clearly harkens back to the Chief Justice’s majority opinions in Free Enterprise Fund and Seila, where the sheer novelty of new regulatory frameworks was a red flag that constitutional lines were being crossed—that doctrines devised by the Court in earlier exercises of prudential judgment were being supplanted by administrative-state innovations deserving closer judicial scrutiny.

“Perhaps the most telling indication of the severe constitutional problem with the PCAOB,” Roberts wrote in Free Enterprise Fund, “is the lack of historical precedent for this entity,” or indeed of “any historical analogues for this novel structure.” He repeated this point—itself a quote from then-Judge Kavanaugh’s own D.C. Circuit opinion—in Seila.

This seems to be Roberts’s instinct in the Texas cases. And even if the constitutional limits on the Court’s own powers limit the Court’s power to grant relief to the plaintiffs in the Texas cases—which I believe to be so—it is good for the Court to pause and consider the administrative framework that Texas has created.

The state’s Heartbeat Act, enacted for the laudable goal of protecting human life, outsourced actual enforcement of the law’s substance to private litigants, who are authorized to file qui tam bounty hunter lawsuits against those who perform or assist unlawful abortions. This enforcement mechanism was created as a crafty way for Texas to avoid trial judges’s preemptive exercises of discretionary review under the Supreme Court’s nebulous “undue burden” standard and the equally nebulous legal and equitable standards for preliminary injunctions. But this approach, replacing clear, swift, and accountable administration with cloud of regulatory uncertainty, raises broader questions of administration in constitutional government today.

Roberts, as I note in the essay, raised such questions nearly three years ago, in an article about qui tam statutes. But the issues presented by Texas’s novel regulatory approach echo broader themes of modern administrative law.

From agencies’ tactical use of guidance documents, to the procedural gamesmanship at issue in Sackett and Hawkes, recent years are replete with examples of passive-aggressive administration. The administrative state is increasingly eager to make and enforce policies indirectly, using intermediaries and leveraging regulatory uncertainty. We should understand Texas’s own novel regulatory structure as just the latest example in that trend.

And it comes at a time when federal regulators are becoming even more creative. The latest generation of climate policy, for example, will be administered not just directly by the EPA, but also indirectly by financial regulators, who will attempt to leverage their longstanding and nebulous bank supervisory powers and other market regulatory authorities to deprive capital to carbon emitters.

These concerns are far afield from the Texas cases, of course. At oral argument today we’re more likely to hear hypothetical questions about how other states might create bounty-hunter administrative frameworks for gun regulation, or in other controverted areas of constitutional law and regulatory policy. And we also, rightly, will hear questions about the constitutional limits on courts’ own powers to intervene, which in the Texas cases seem dispositive.

But as the justices hear the cases, and when they decide them, we should keep in mind not just the immediate context of abortion policy, but also the broader context of administration today: the efforts of legislatures and regulators to make administration less direct, less accountable, and more passive-aggressive.

Adam J. White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s Gray Center for the Study of the Administrative State.

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