Supreme Court building on Capitol Hill in Washington, Nov. 16, 2022. (AP Photo/Patrick Semansky, File)

It is no secret that the Supreme Court’s right-wing majority dislikes reproductive rights, race-based remedies, the administrative state, and the policy agenda of the Joe Biden administration. (Law professors-cum-essayists Garrett Epps and Lisa Heinzerling have recently published bracing accounts of this moment and how we got here.) A hyperbolic November 10 opinion by a federal district court judge in Texas invalidating the Biden administration’s student loan forgiveness program demonstrates an additional wound the Court has inflicted on the rule of law. The Court’s disregard of precedent, embrace of slipshod “originalist” history, and mischaracterization of fact has trickled down to lower courts. This combination produces opinions that match the right-wing agenda but not well-established law. Such lawlessness has created, in the words of Mark Joseph Stern, an “increasingly farcical pretext of impartiality” in some corners of the federal judiciary.

In Brown v. U.S. Department of Education, Mark T. Pittman, a federal district judge appointed by Donald Trump, found that two borrowers had “standing” to seek a nationwide injunction against the administration’s student loan forgiveness program because they had been denied the opportunity to comment on the terms of the program before it became final. Under well-established precedent, before a federal court has the constitutional authority to decide a case on its legal merits, federal plaintiffs must show that they have “standing.” The most basic requirement is that plaintiffs show they have suffered or will suffer a concrete injury because the government is acting unlawfully.

In Brown, the two borrowers argued that a so-called procedural injury had harmed them. They claimed they were denied a legally guaranteed opportunity to comment on the terms of the program before it went into effect—an opportunity afforded by the Administrative Procedure Act (APA). However, the seemingly impossible problem with this injury claim is that the education secretary created his program under the HEROES Act, which exempts student loan waivers from the APA. In other words, the public has no legal right to comment before the secretary uses his HEROES Act powers to waive or modify any legal requirements about student loans. The borrowers tried to get around this problem by arguing that if the forgiveness program was not lawful under the HEROES Act, then the APA would apply. But this is incoherent. If the program was not lawfully created under the HEROES Act, there would be no lawful program to comment on. The APA would be irrelevant, and the borrowers would have lost nothing.

Pittman, however, purported to rescue the plaintiffs from their bind with a sleight of hand worthy of three-card monte. He relied on a procedural rule well known to lawyers to ascertain whether a suing party has standing. But again, that rule will help a complainant only if their legal claim substantiates that they were injured. Here it would not. Even if the court accepted for purposes of argument that the education secretary could not rely on the HEROES Act, nothing would have injured the plaintiffs.

Such right-wing dogma abounds in the Fifth Circuit and its lower courts in Texas, Louisiana, and Mississippi. In October, a Fifth Circuit panel of three Trump appointees issued an opinion, Community Financial Services Association of America, Limited v. Consumer Financial Protection Bureau, declaring the CFPB unconstitutional. Congress’s supposed error was allowing the CFPB to be funded outside the customary appropriations process. The CFPB is funded by the Federal Reserve, which is obligated by the Dodd-Frank statute to provide the bureau with whatever funding it reasonably requests, up to 12 percent of the Federal Reserve’s operating expenses. Of course, Congress wrote Dodd-Frank and can rescind it at any time. But the panel argued that any statute creating the CFPB must be labeled an “appropriation” because the Constitution says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In the panel’s words—unsupported by legal citation—”Congress’s mere enactment of a law by itself does not satisfy the clause’s requirements.” That no Supreme Court precedent hints at that conclusion is only one of several conspicuous problems with its logic.

As a second problem, the Fifth Circuit holding implicitly calls into question not only the legality of everything the CFPB does but also the constitutionality of the Federal Reserve, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the National Credit Union Administration, and the Federal Housing Finance Agency, all of which have long been funded independently of annual statutes labeled “appropriations.”

The third problem is that no evidence from the founding period supports the proposition that an “appropriation” refers only to a specific statutory format as opposed to, say, any statute enacted by Congress that determines how public money shall be spent. Congress’s power to allow spending through whatever form of authority it enacts is like its unquestioned power to authorize military force abroad through a statute, even if it is not labeled “Declaration of War.”

The Framers understood that in one context, permanent funding might be a problem—that of a military establishment of the kind that George III wielded. The Constitution thus states that Congress shall have the power “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Thus, so long as public funds support a constitutionally permissible purpose and are not for the support of an army, there is no other limit in the Constitution as to the statutory vehicle Congress might deem “necessary and proper” for funding a government entity.

Equally audacious is an opinion issued last May, Jarkesy v. Securities and Exchange Commission, by a split panel of the Fifth Circuit holding that the Securities and Exchange Commission cannot bring an administrative enforcement action—as opposed to suing in court—against a party alleged to have committed securities fraud. The use of an administrative proceeding is supposedly unconstitutional because parties accused of fraud under federal securities law possess a constitutional right to a jury trial. According to the panel, there are two problems with the statute: first, Congress gave the SEC too much discretion to decide whether it wanted to proceed administratively or in court, and second, the administrative law judges who preside over prosecutions within the agency enjoy protection against at-will dismissal that supposedly violates the separation of powers.

The majority opinion by Judge Jennifer W. Elrod is rhetorically motivated by the proposition that administrative action cannot be used where a jury trial could be. She writes that the jury is “as central to the American conception of the consent of the governed as an elected legislature or the independent judiciary,” a proposition for which she cites as an authority…a law review article by Jennifer W. Elrod. Yet the dissent painstakingly shows how the majority misreads the line of cases that distinguish between rights that may be enforced either administratively or in court from rights that entitle a civil defendant to a jury trial on the government’s claims. Like the majority opinion in Community Financial Services, the majority opinion in Jarkesy implicitly casts doubt on a wide swath of conventional administrative activity, namely, bringing administrative enforcement to bear against a party who has violated obligations created by federal regulatory statutes.

For perverse rulings, however, it would be hard to beat U.S. v. Perez-Gallan, an opinion out of the Western District of Texas that the Second Amendment makes it unconstitutional to deny the right to own firearms to domestic abusers subject to a court order of protection. The federal trial judge reasoned that such a prohibition lacks sufficient historical validation. In the words of Judge David Counts: “Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.” Indeed, Counts notes, domestic violence was apparently not a big deal for the men of the founding generation: “The Plymouth Colony court records from 1633 to 1802 represent the only jurisdiction where the prosecution of domestic violence has been studied over a long time frame. And during that almost 200-year period, only twelve cases involving wife beating were prosecuted.” There is nothing subtle about how Perez-Gallan constitutionalized traditional misogyny. It is all spelled out.

These cases echo the arrogance and sloppiness with which the Supreme Court majority too often seems intent on pursuing an ideological agenda. Whether overturning abortion rights or reversing the Court’s prior stance on regulating corporate political expenditures, the Court does what it will. Determined to thwart racial integration measures or shore up the so-called unitary presidency, the majority feels free to narrow unanimous Supreme Court precedents like Brown v. Board of Education or Humphrey’s Executor v. United States, respectively. The Court peddles a mythic account of how the founding generation understood the separation of powers, despite a flood of scholarly research by legal historians belying the Court’s interpretation.

The Court’s conservatives have shown themselves willing not only to misread history but even to mischaracterize the facts of a case before them if those facts stand in the way of expanding their view of religious liberty. They see little virtue in hesitating before making up new rules. For example, at the end of the last term, the Court used as its vehicle for articulating a new antiregulatory “major questions doctrine,” a seemingly moot case involving a Trump-era regulation no longer in effect and an Obama-era regulation that the Biden administration was uninterested in reissuing. This term, the Court will decide whether challengers to the constitutionality of the structure or procedures of independent agencies like the Federal Trade Commission and Securities and Exchange Commission need to defer their challenges until the agencies conclude some actual enforcement action against them. The answer is likely to be negative.

Fortunately, there are conservative judges, including Trump appointees, whose performance is a reminder that federal courts need not become bastions of naked partisanship, even in politically sensitive cases. Consider the blunt opinion by an all-Republican Eleventh Circuit panel applying well-established rules to halt a special master’s review of documents lawfully seized from Mar-a-Lago. It demonstrates that the capacity for judicial self-discipline is not limited by party. More courts should emulate their restraint lest they betray Alexander Hamilton’s famous forecast that the federal judiciary would become our “least dangerous” branch. Hamilton predicted federal judges would “have neither FORCE nor WILL, but merely judgment” at their disposal. Despite some reassuring performances, force and will, not judgment, too often seem the order of the day.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane