Outcome of presidential election will impact judicial review of vital federal regulations

The impact of each presidential election on the makeup of the Supreme Court receives plenty of media attention and is analyzed extensively by experts and court watchers—and deservedly so. During the vice presidential debate, Vice President Biden predicted that the next president is likely to appoint “one or two” justices to the nation’s highest court. Although this prediction may have spooked a few of the Supreme Court justices, given that they would either have to die or retire to open a seat on the court, the election’s impact on the judiciary is a crucial consideration. Lifetime appointments for Supreme Court nominees mean they are sometimes the most enduring legacy of a president’s administration. Given that the Supreme Court is currently comprised of five conservative and four moderately progressive justices, the next administration could realistically tip the ideological balance of the court.

Some of the Supreme Court’s decisions in the past few terms, on Citizens United, the Affordable Care Act, and Arizona’s SB1070 immigration law, for example, were monumental decisions that will impact the everyday lives of citizens, and even the framework of American democracy. But the mainstream media, for the most part, have paid little attention to the potential impact of the election on federal regulations, which executive agencies promulgate and implement to protect the public from toxic pollutants, reckless bankers, and abusive employers (to name just a few important examples).

Federal regulations are nearly as important as the laws that authorize them—because the language Congress uses is often broad, but the regulations that implement the aims of the law are specific, targeted, and drafted by people with expertise in the subject matter area being regulated. Thus, regulations are truly where the rubber hits the road when it comes to the laws and agencies created to protect us. However, the massive ongoing lobbying efforts at the federal agency level by a plethora of industries and corporate advocates to delay, shape, and dilute the substance and effectiveness of federal regulations (see, e.g., here, here and here)—as well as the countless challenges in federal courts to invalidate the regulations that are ultimately promulgated—continues to be an underreported key narrative about the election.

In the latest issue of the New York Review of Books, Cass Sunstein, President Obama’s former director of the Office of Information and Regulatory Affairs (OIRA), explains his extensive empirical research, which sheds light on how different the judicial outcomes are in federal regulatory challenges, depending on whether the judges were appointed by a Democratic or Republican president. (OIRA is a powerful but obscure entity within the White House Office of Management and Budget that oversees the government’s regulatory activity and has to sign off on the most important regulations before they can be issued.)

Challenges to federal regulations are generally reviewed in federal court by a panel of three judges. Sunstein’s study reviewed and tabulated the voting behavior of such panels over 15 years, and the results reveal a shockingly partisan bias that conflicts with any notion of judicial impartiality. This research offers convincing evidence that who we vote for has a direct impact on the rules that are designed to protect us.  Here’s how Sunstein characterizes what the data reveal:

1. When the affected industry challenges a rule, Republican appointees are significantly more likely than Democratic appointees to vote to strike down that rule.

2. When a public interest group challenges a rule, Democratic appointees are significantly more likely than Republican appointees to vote to strike down that rule.

3. Judges’ likely votes are greatly affected by the positions of their colleagues. Sitting with two fellow Republican appointees, a Republican appointee becomes even more likely to side with industry. Sitting with two Democratic appointees, a Democratic appointee becomes even more likely to agree with a public interest group.

Of course the law imposes constraints; judges cannot strike rules down simply because they dislike them. But there is no question that the ultimate fate of rules protecting health, safety, and the environment may ultimately depend on whether the judges on the panel were appointed by a Republican or a Democrat.

As multiple media reports have pointed out, Sunstein himself had a controversial reign at OIRA, and he’s been widely criticized. It is in fact very difficult for a neutral observer to determine whether he governed more like a Democrat or a Republican under the terms of his own partisanship analysis. However, Sunstein’s analysis is still instructive and useful in terms of understanding the importance of the 2012 presidential election.

A Democratic president will typically appoint federal judges with philosophies that reflect Democratic Party values and who share the president’s viewpoints on key issues. A Republican president’s appointees will likewise share the ideals of the Republican Party and the president who nominated them. Sunstein’s research shows that in litigation to invalidate a federal regulation which pits corporate interests against public interest organizations that advocate on behalf of the public good on important issues such as the environment, finance, labor laws and safety in the workplace, Democratic judges will be more likely to rule in favor of public interest organizations (and by extension, in favor of clean air and water, and workers’ and consumer rights). Republican judges on the other hand, will be more likely to rule in favor of polluters, banks, and corporations. The presidential election will determine whose interests the federal government’s executive and judicial branches ultimately protect.