Maybe you’ve spent the past few days either buried in articles, op-eds, editorial board exhortations, podcasts, and cablecast panels discussing the presidential debate. Or perhaps you’ve devoted your time to avoiding all that along with the public quarrel about what Joe Biden should now do. In either case you may have missed yet another Supreme Court decision in the recent competition for top billing on the roster of worst rulings ever. Two cases were involved Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
As Zoë Schlanger noted at The Atlantic, the Court’s array of usual suspects in the ruling “essentially threw a stick of dynamite at a giant, 40-year-old legal levee.” That barrier was the Chevron deference, since 1984 a mainstay for administering U.S. laws whose reversal has now “likely unleashed a river of litigation, much of which could erode away the country’s climate and environmental ambitions.”
At Slate, Dahlia Lithwick and Mark Joseph Stern explain:
The government is vast. It is run by a bunch of agencies, most of which you probably haven’t heard of, that are staffed with experts who have a deep knowledge and experience in a particular subject matter, alongside lawyers who want to make government work for the people. And they’re operating under political appointees who are accountable to the president, who’s accountable to the people. We rarely talk about these agencies, yet they’re the ones who are interpreting and executing the law, day in and day out. They’re approving or rejecting new drugs. They’re limiting pollution from some dirty factory in West Virginia that’s creating a cancer cluster in a majority-Black community. They’re the ones who are making sure we’re given the full scope of protections that Congress aimed to give us when enacting broadly worded laws.
That’s how government works, and it’s anathema to the Republican Party and Donald Trump. One of Trump’s key goals was dismantlement of the administrative state. Steve Bannon said it himself. And that’s a fundamental part of Project 2025. They want to stop government from working, because they believe when government functions properly, it’s bad for billionaires. It’s bad for polluters. It’s bad for industry that wants to dump pollution into our waters, or sell drugs that aren’t safe, or make a ton of money and shelter it from taxation.
Right now, much of the country is still talking about Biden stuttering on the debate stage instead of how each of these men would run and staff the sprawling government that they would ostensibly run. If we had a healthier conversation here, we’d be talking more about Loper Bright today than about the debate. Because the Supreme Court has just awarded itself sweeping authority to overrule those agencies and experts and appointees and shift all that power to unelected judges, away from the people. And Trump wants to appoint more power-hungry judges who operate like this Supreme Court, and staff the executive branch with industry-allied appointees who will try to dismantle the very agencies they run. But because most Americans, I fear, still fundamentally misunderstand how the wheels of government truly turn, we’re obsessing about Biden’s sore throat, not talking about one of the biggest power grabs that the judiciary has ever undertaken.
A year ago, when the Court struck down President Biden’s student debt relief plan in Biden v. Nebraska, Justice Elena Kagan wrote a fiery masterpiece of dissent. For the Loper ruling, she did it again:
Today, the Court flips the script: It is now the courts (rather than the agency) that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. [...] But evidently that was, for this Court, all too piecemeal. In one fell swoop, the majority today gives itself exclusive power over every open issue no matter how expertise-driven or policy-laden involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country's administrative czar. It defends that move as one (suddenly) required by the (nearly 80-year-old) Administrative Procedure Act. But the Act makes no such demand. Today's decision is not one Congress directed. It is entirely the majority's choice. [...]
It barely tries to advance the usual factors this Court invokes for overruling precedent. Its justification comes down, in the end, to this: courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.
That last line will, I suspect, will live through the ages.
As momentous as the Chevron ruling is, Justice John Roberts did as he did in Shelby v. Holder back in 2013 when he wrote that a portion of the Voting Rights Act was no longer necessary because voter suppression was a thing of the past, This time Roberts tried to downplay the impact of Chevron being reversed on the grounds it hasn’t been used by the Supreme Court since 2016, that it is just a “decaying husk with bold pretensions.”
Kagan is again scathing in response:
because this Court has ignored Chevron lately; all that is left of the decision is a “decaying husk with bold pretensions." [...] Tell that to the D.C. Circuit, the court that reviews a large share of agency interpretations, where Chevron remains alive and well. [...] But more to the point: The majority's argument is a bootstrap. This Court has"avoided deferring under Chevron since 2016 [...] because it has been preparing to overrule Chevron since around that time. That kind of self-help on the way to reversing precedent has become almost routine at this Court. Stop applying a decision where one should; throw some gratuitous criticisms into a couple of opinions; issue a few separate writings “question[ing the decision's] premises”; [...] give the whole process a few years ... and voila! you have a justification for overruling the decision.
While Roberts wrote that previous rulings under the now-demolished Chevron deference remain safe, we’ll see how long that lasts. Given the Supreme Court’s invention of “major questions doctrine” to arrogate even more power over policy to the federal judiciary, the risk to some of those past rulings is far from zero.
Meanwhile, it will no longer be the people who have spent their lives working to understand a particular field who will be interpreting how legislation should translated into administration regulations. We’ll instead have the likes of Judge Aileen Cannon ruling on whether the government made the right standard for how much lead is acceptable in our drinking water and blood.
Several progressive members of Congress are seeking to upend the Chevron reversal with new legislation.
In a statement announcing he would introduce a bill to protect government policy-making abilities in the wake of the reversal, Democratic Sen. Ed Markey of Massachusetts said: "Now, with this ill-advised decision, judges must no longer defer to the decisions about Americans' health, safety, and welfare made by agencies with technical and scientific expertise in their fields. MAGA extremist Republicans and their big business cronies are rejoicing as they look forward to creating a regulatory black hole that destroys fundamental protections for every American in this country. [...] This unhinged Supreme Court needs to stop legislating from the bench, and we must pass sweeping reform to hold them accountable."
Progressive Caucus Chair Pramila Jayapal of Washington labeled the ruling "dangerous" and is calling on Congress to "immediately pass" the Stop Corporate Capture Act, which she introduced in March 2023. She had introduced a similar bill in 2021, but it only got 12 co-sponsors and no hearings. The current bill has 40 co-sponsors. In a statement Friday, Jayapal said the act was "the only bill that codifies Chevron deference, strengthens the federal-agency rulemaking process, and ensures that rulemaking is guided by the public interest—not what's good for wealthy corporations."
Important, worthwhile legislation, but without a ghost of a chance of passing until Congress is firmly in Democratic hands.
—MB
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