Town Halls

Before the Court: Bureaucracy Run Amok

SCOTUS Tackles the Administrative State


Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association (No. 14-480) begins at 1:47 | Hawkins v. Community Bank of Raymore (No. 14-520) begins at 28:43

In the Age of Obama, the “fourth branch” of government—Washington’s sprawling bureaucracy—has grown in power and influence. This year, the Supreme Court will have several chances to reevaluate the deference it has historically given the administrative state. The Center for Constitutional Jurisprudence is taking a particular interest in this fight to rein in the excesses of unaccountable agencies and help restore constitutional government.

Dr. John C. Eastman, Founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence hosts this town hall covering the U.S. Supreme Court’s coming opportunity to reassess the powers of the administrative state.  He is joined by David B. Rivkin, a partner at Baker Hostetler who co-chairs the firm’s Appellate and Major Motions practice.  Mr. Rivkin draws from his experiences in the Department of Energy as well as his litigation in private practice against the EPA’s excessive Clean Air Act regulations.

In Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association (No. 14-480), the Court must decide whether FERC has the authority to issue rules regulating how regional entities throughout the country offer incentive payments for reductions in electricity consumption. Much of the U.S. wholesale electricity market is run by regional nonprofits that set wholesale rates by matching supply and demand in real-time and day-ahead markets to balance the amount of electricity on the grid. In recent years, they have achieved that balance by paying users to reduce consumption at high usage times, a practice called “demand response.” FERC established a methodology the regional entities must use to compute this compensation, but the D.C. Circuit ruled that FERC lacked the authority to do so.

Hawkins v. Community Bank of Raymore (No. 14-520) asks the Court to decide whether the Federal Reserve Board has the authority to expand the right to sue under the Equal Credit Opportunity Act, even though Congress never granted the agency that authority. In 1975, Congress passed the Equal Credit Opportunity Act—to be administered by the Federal Reserve Board—with the primary purpose of disallowing discrimination against loan applicants based on issues such as gender, race, and ethnicity. Until 1985, the Federal Reserve Board interpreted the right to sue granted in the Act as limited to loan applicants. But in 1985, though Congress has not expanded the right to sue contained in the Act, the Board decided that loan guarantors should also have that right.