The Supreme Court's 'New Substantive Due Process': A Constitutional Theory to Dismantle the Administrative State

Over the past several years, the conservative majority on the United States Supreme Court has systematically dismantled key pillars of the modern federal government, targeting the vast network of executive agencies known as the administrative state. In a rapid succession of landmark rulings, the Court has stripped agencies of their power to interpret ambiguous laws, restricted their ability to enforce regulations through internal tribunals, and limited how Congress can insulate agency directors from presidential removal. On the surface, these decisions are framed as a return to strict constitutional textualism and a restoration of the separation of powers. However, a growing chorus of legal scholars has identified a profound paradox at the heart of the Court's recent jurisprudence. They argue that while the conservative justices have explicitly repudiated the concept of "substantive due process" when it comes to personal, individual rights, they are quietly relying on the exact same underlying legal philosophy to reshape the structural foundations of the American government.[1][3]

To understand this paradox, one must first understand the controversial history of substantive due process. In American constitutional law, procedural due process guarantees that the government cannot deprive a citizen of life, liberty, or property without following fair legal procedures, such as a trial by jury. Substantive due process, by contrast, is the legal theory that the Constitution's Due Process Clause protects certain fundamental, substantive rights from government interference, regardless of what procedures are used. Because these rights are not explicitly enumerated in the constitutional text, the doctrine has always been a lightning rod for criticism. During the early 20th century's Lochner era, the Supreme Court used substantive due process to strike down economic regulations, such as minimum wage and maximum hour laws, arguing they violated an unwritten "liberty of contract." Decades later, the Court used the same doctrine to establish unwritten privacy rights, culminating in decisions that protected contraception, intimate relationships, and, most famously, abortion access in Roe v. Wade.[8]

For decades, the conservative legal movement built its identity on fiercely criticizing substantive due process, characterizing it as a tool for judicial activism. Originalist scholars and judges argued that when courts invent unenumerated rights based on abstract notions of "liberty," they are simply substituting their own political preferences for the democratic will of the legislature. This decades-long campaign achieved its ultimate victory in 2022 with the Dobbs v. Jackson Women's Health Organization decision, which overturned Roe v. Wade. In that ruling, the conservative majority declared that the Constitution makes no reference to abortion and that any right protected by substantive due process must be "deeply rooted in this Nation's history and tradition." By rejecting the freewheeling liberty analysis of the past, the Court signaled what many believed was the death knell for substantive due process as a viable constitutional doctrine.[1][4]

Yet, according to prominent legal academics, the Court did not actually abandon substantive due process; it simply relocated it. In a forthcoming Texas Law Review article, Professor Leah Litman coined the term "The New Substantive Due Process" to describe how the Court has transposed this exact framework onto structural administrative law. Instead of using abstract concepts of liberty to protect individual bodily autonomy or privacy, the Court is now using broad, contestable theories of liberty to protect citizens from the perceived overreach of the administrative state. In cases involving presidential removal powers and the use of non-Article III courts, the justices have reoriented their legal doctrines to ask whether specific bureaucratic arrangements are consistent with a generalized, unwritten concept of freedom. Critics note that this approach relies on the same high levels of generality and lack of textual precision that conservatives once lambasted in the privacy cases.[1][4]

The primary target of this new jurisprudence is the administrative state, a term used to describe the multitude of federal agencies—from the Environmental Protection Agency to the Securities and Exchange Commission—that write and enforce the rules governing the modern American economy. Since the New Deal era of the 1930s, Congress has broadly delegated authority to these agencies, relying on their technical expertise to manage complex issues that a slow-moving legislature cannot micromanage. For nearly a century, the Supreme Court largely deferred to this arrangement, recognizing that a modern, industrialized nation requires a robust executive apparatus to function. However, the current Court views this accumulation of power with deep suspicion, arguing that unelected bureaucrats have usurped the legislative role of Congress and the judicial role of the courts, thereby threatening the fundamental liberties of the American people.[5][7]

This philosophical shift was vividly illustrated in the 2024 case SEC v. Jarkesy. The Securities and Exchange Commission had long utilized in-house administrative law judges to adjudicate claims of securities fraud and impose civil financial penalties. George Jarkesy, a hedge fund manager fined by the SEC, argued that this internal process violated his Seventh Amendment right to a jury trial. The Supreme Court agreed in a 6-3 decision, ruling that when the government seeks civil penalties for fraud—a claim that resembles traditional common-law lawsuits—the defendant is constitutionally entitled to a trial before an Article III federal court and a jury of their peers. While the decision was rooted in the Seventh Amendment, the majority's underlying rhetoric focused heavily on the coercive nature of administrative tribunals and the need to protect citizens from unaccountable agency overreach.[2]

The Jarkesy decision represents a massive structural shift in how the federal government enforces its laws. By restricting the "public rights doctrine"—which previously allowed the political branches to handle certain regulatory disputes outside of traditional courts—the Supreme Court has effectively mandated that agencies must navigate the slower, more resource-intensive federal court system to impose punitive fines. Legal analysts point out that this ruling does not just affect the SEC; it casts a shadow of constitutional doubt over dozens of other federal agencies, such as the Environmental Protection Agency and the Occupational Safety and Health Administration, which rely heavily on administrative proceedings to enforce environmental and workplace safety standards. The Court's willingness to upend decades of established enforcement practices underscores its commitment to reining in the administrative state, even if it requires aggressive judicial intervention.[2][6]

The most consequential blow to the administrative state, however, came in the 2024 decision Loper Bright Enterprises v. Raimondo. In this landmark ruling, the Supreme Court officially overturned the Chevron deference doctrine, a 40-year-old precedent that had served as a central pillar of modern administrative law. Established in 1984, Chevron required federal judges to defer to a government agency's reasonable interpretation of an ambiguous statute. The logic was straightforward: when Congress writes a vague law regarding environmental toxins or financial derivatives, expert agency scientists and economists are better equipped to fill in the gaps than generalist federal judges. For decades, Chevron deference allowed the executive branch to adapt older statutes to address emerging, unforeseen challenges without waiting for Congress to pass new legislation.[3]

In overturning Chevron, the conservative majority argued that the doctrine violated the Administrative Procedure Act of 1946 and abdicated the judiciary's core constitutional responsibility. Writing for the Court, Chief Justice John Roberts declared that it is the exclusive province of the judicial branch to say what the law is, and that judges must exercise their independent judgment rather than deferring to the executive branch. While the decision was framed as a defense of the separation of powers, scholars argue it perfectly encapsulates the "new substantive due process." By stripping agencies of their interpretive authority, the Court is centralizing power within the judiciary, relying on an unwritten, structural theory that agency deference inherently threatens the liberty of the governed. The practical result is a massive transfer of policymaking influence from subject-matter experts to unelected federal judges.[3][7]

A third mechanism of this new jurisprudence involves the President's power to remove the heads of federal agencies. In cases like Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court struck down statutory provisions that insulated agency directors from being fired by the President without "cause." Congress frequently designs independent agencies with these removal protections to shield them from partisan political pressure, ensuring that financial regulators or election commissioners can operate objectively. However, the conservative majority ruled that such insulation violates the separation of powers. They argued that because the President is democratically accountable to the entire nation, restricting their ability to fire executive officers severs the chain of accountability, thereby threatening the liberty of the people.[4][7]

Proponents of the Court's current trajectory, largely rooted in the conservative legal movement, view these developments not as judicial activism, but as a necessary constitutional correction. They argue that the administrative state has grown into an unconstitutional "fourth branch" of government that operates outside the bounds of the separation of powers envisioned by the Framers. In their view, executive agencies have been allowed to simultaneously write the rules, enforce the rules, and adjudicate disputes over those rules, creating a tyrannical concentration of power. By dismantling Chevron deference, restricting administrative tribunals, and enforcing strict presidential control, conservatives argue the Court is forcing Congress to take responsibility for its legislation and restoring the democratic accountability that protects individual freedom.[5][7]

Conversely, defenders of the administrative state and progressive legal scholars argue that the Court is engaging in profound hypocrisy. They point out that the Constitution's text is entirely silent on the specific structure of administrative agencies, the existence of administrative law judges, and the exact parameters of the President's removal power. Because the text does not explicitly forbid these modern bureaucratic arrangements, critics argue that the conservative majority is doing exactly what they accused liberal justices of doing during the Roe v. Wade era: inventing unwritten rules based on their own subjective political theories of "liberty." By striking down agency structures that were democratically enacted by Congress, these scholars contend that the Court is acting as an anti-democratic force, substituting the legislature's design with the justices' own preference for a deregulated economy.[1][4]

The practical consequences of this jurisprudential shift are already sending shockwaves through the federal government and the broader legal system. Regulatory practitioners warn that stripping agencies of their flexibility and enforcement tools will severely paralyze the government's ability to respond to complex, rapidly evolving crises. Whether dealing with the emergence of artificial intelligence, the regulation of novel cryptocurrency markets, or the mitigation of global climate change, agencies will now face an uphill battle in federal court for every new rule they promulgate. Without the shield of Chevron deference, corporate litigants are highly incentivized to challenge regulations, knowing that federal judges are now empowered to second-guess the scientific and economic rationales behind agency decisions.[3][6]

Looking ahead, the ultimate boundaries of the "new substantive due process" remain highly uncertain. Litigants are already testing the waters, using precedents like Jarkesy to challenge the constitutionality of state-level administrative agencies in state supreme courts. Furthermore, legal observers are watching closely to see if the Supreme Court will apply its aggressive removal-power logic to fully independent agencies like the Federal Reserve, the National Labor Relations Board, or the Federal Trade Commission. If the Court determines that all agency heads must be fireable at will by the President, it would fundamentally alter the independence of the nation's central bank and regulatory apparatus. As the Court continues to reshape the American government in the name of liberty, the debate over who truly holds the power to govern the modern state is only just beginning.[4][6]