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How the Supreme Court Set the Stage for the Jan. 6 Riot

Philip Hamburger
Chief Executive Officer

January 5, 2023

On the second anniversary of the invasion of the Capitol on Jan. 6, 2021, it’s worth considering how politics—and especially presidential elections—have increasingly become like warfare. A pair of developments—one legislative, one administrative—have raised the political stakes. In the 20th century, the Supreme Court simultaneously expanded Congress’s legislative powers and allowed them to be exercised by administrative agencies. The high court thereby loosed administrative agencies to exercise immense legislative power. Little could be more destabilizing. 

For a long time, the implications of this were muted because neither Congress nor the agencies took full advantage of what they might get away with under the court’s doctrines. But in recent decades, the federal government has relied on the court’s expansive vision of its legislative power to regulate education, speech, healthcare, insurance, sexual relations, and other areas that once seemed largely beyond Washington’s reach. Federal agencies have become the regulatory vanguard—audaciously exploiting congressional ambiguity and silence to bring the breadth of federal power to bear on Americans. 

Expanded central legislative power displaces much of what used to constitute politics at the state level. It reaches deep into private institutions and life. National political contests have become battles for control of this vast power, stimulating much anxiety about politics. Those who win federal power can oppress; those who lose are apt to be oppressed. Americans, both left and right, fear being subjugated in matters that once seemed unpolitical. Bloated federal legislative power simultaneously nationalizes American politics and politicizes American life. 

What makes this especially dangerous is that administrative agencies, not only Congress, now exercise this expansive legislative power. These agencies are in the hands of unelected bureaucrats, who can be unleashed—or restrained—by the president. Presidential elections therefore elicit an intensity of feeling that strains lawful, let alone civilized, conduct. They have become do-or-die battles for control of massive regulatory power. With so much riding on a single election, the stakes become too high. An almost irresistible incentive exists to suppress opponents and their views—abandoning all traditions of cooperation, tolerance and freedom of speech. 

There also are heightened incentives for dishonesty and corruption—as well as intensified fears about such things. Election fraud inevitably moves from a local to national concern. Even if the amount of fraud is negligible, an exaggerated fear of it becomes a threat to the government’s legitimacy. 

Accentuating the conflict is the expansion of judicial power—the source of the combined legislative and administrative power that went so far in creating the mess. Judges at times make themselves more important than the law. So their appointment by the president becomes another reason for electoral conflict. None of this is to discount other factors—including ideology and the growth of social media—in stimulating political conflict. Nor is it to deny that some earlier presidential elections have been vicious. But the opportunity for vast regulatory power through administrative agencies guarantees the existential tone of presidential contests. 

It is very dangerous that federal regulatory power is simultaneously so expansive and so administrative. Much power now rests on presidential elections. In the resulting all-or-nothing battles, politics becomes warfare. 

So on an anniversary when there will be much blame to go around, it is worth reserving some for the Supreme Court. Our high court might have been content with making federal regulation highly expansive. Or in making it highly administrative. Instead, it did both, structurally ensuring that presidential conflicts will tear the nation apart. 


Originally Published in The Wall Street Journal