As Vox's Ian Millihiser explains, the real threat to the Biden administration is the 6-3 conservative Roberts Court, and it will use its power to shut down Biden's advances and to set America back decades starting this summer.
Enter the Roberts Court, fortified by Trump’s appointees. With six conservative justices, the Court has the votes it needs to make Bannon’s goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of the executive branch’s authority.
It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. 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.
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. 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.
All of this culminated in Justice Neil Gorsuch’s opinion in Gundy v. United States (2019), which called for strict new limits on federal agencies — and for the judiciary to even strike down many federal regulations as unconstitutional. Though Gorsuch’s opinion was a dissent — that is, he didn’t yet have a majority for it — five justices now on the Court have largely endorsed his framework, which relies on a conservative legal principle known as “nondelegation.”
In other words, it may be only a matter of time before the Court starts striking down Biden administration regulations that rely on legal arguments that would have been treated as nonsense just a decade ago.
At least since the Franklin Roosevelt administration, federal agencies have had wide latitude to implement the policies the president campaigned on. And agency-initiated regulations answer such important questions as who has access to health care, how much workers are paid for their labor, and a wide range of environmental questions that go well beyond the Clean Power Plan.
So, no matter what issue you care about, there is likely a federal regulation that shapes the nation’s approach to that issue. If the Supreme Court strips the government of much of its power to promulgate these regulations, it could effectively grind down the Biden presidency — not to mention dismantle much of American law.
In other words, we may nt get through the Biden era without permanent damage to the federal government, and states then freely able to sabotage and exploit citizens at will. A federal government with no power to federalize much of anything means red states will become fortresses that hold the poor captive in service to GOP "ideals", and there will no change during my lifetime to fix most anything.
The Bush-era assholes who had no problem with a "plenary executive" now see Biden as a threat.
That threat will be removed.
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