The filibuster fight over the mini-Supreme Court

Brad Plummer at Wonkblog yesterday attributed the recent execution of the nuclear option that altered the filibuster in the Senate to the happenings of the DC Circuit.  Aside from the fact that the DC Circuit  is regarded by Court watchers as a stepping stone to the high Court, Plummer points out another interesting feature of the DC Circuit, namely it's particular caseload that is heavy with administrative cases.  The DC Circuit that is among the U.S. Courts of Appeals, described by some as the least known federal courts, may well be the mini-Supreme Court given this caseload and not just because of its record of sending the most nominees to the Supreme Court.

Plummer notes the following about the DC Circuit:

The D.C. Circuit is surprisingly powerful — not least because it rules on decisions made by federal administrative agencies. If people want to challenge various federal regulations in court, the cases often end up here. It's "a court with special responsibility to review legal challenges to the conduct of the national government," explained Supreme Court Chief Justice John G. Roberts, who served on the D.C. Circuit court until 2005.

Plummer adds that the DC Circuit is likely to oversee many cases on environmental policy and final regulation in the years to come.

The fact that the U.S. Courts of Appeals, including the DC Circuit, must adjudicate all cases appealed to it, while only the Supreme Court has the luxury of picking and choosing its cases has meant that the Courts of Appeals have become significant policy makers in their own right. While it is true that any decision the Supreme Court renders binds the entire nation, the high Court's caseload of about 100 cases per term means effectively that large numbers of Courts of Appeals decision making on huge swaths of law (thousands of cases per circuit) are left un-commented upon by the Supreme Court.

Add to that situation the development of a more and more elaborate and sprawling bureaucracies and you have the DC Circuit now playing a very important role in governance indeed. This situation is due to the messiness of the legislative process and sometimes the need for compromise means legislation is written in a vague manner. That vague language leaves implementation and interpretation up to sprawling bureaucracies and their staff, who are themselves not directly elected by the people. Increasingly, in many areas of administrative law, one sees government agencies themselves are driving policy changes from within and without going through the tough vetting system of the formal legislative process. What these administrative agencies from the Social Security Administration to the Veterans Administration and the Department of Homeland Security call bureaucratic rule changes end up having the force of legislation as citizens experience these changes in policy.

Additionally, the Executive branch is also turning to policymaking via rule changes.  In the present situation of party polarization and administrative gridlock, it is even more likely that a President will seek to make rules administratively instead of trying to run the gauntlet of the formal legislative process. As AP News reported a few days ago, "Obama is relying more often on making relatively minor administrative changes to America’s complicated immigration system, as the likelihood dims that Congress will overhaul the law." And as this trend continues, the DC Circuit will be at the center, providing the Third Branch check on these bureaucratic rule changes that have the effect of law. The DC Circuit's significance then is far greater than as a stepping stone to the Supreme Court.