The famous—or infamous—Chevron case isn't complicated. In a nutshell, it says that when Congress writes a vague law a federal agency should be allowed to interpret it in any reasonable way. Not any way. If an agency is flatly wrong, then a court can overturn it. But if there are multiple plausible ways of interpreting the statute, courts should defer to the interpretation chosen by the agency.
This is reasonable, and it's been the law for 40 years. But today's Supreme Court practically revels in overturning long-held precedent and they did it again today:
Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction is to resolve statutory ambiguities.
There's no telling what kind of Pandora's box this opens. Agencies always write detailed rules to implement federal laws, and there's no alternative to this. In the modern world, it's simply not feasible for Congress to write laws so detailed that corporations and people can act on them with any confidence. It took more than ten years to write all the rules to implement the Dodd-Frank financial regulation bill, for example.
In practice, what this means is that every law is accompanied by hundreds of pages of implementation rules, all of which are now up for grabs with no deference allowed for the expertise and laborious public comment phase of rulemaking. If a court decides that its vibes say different, then that's the way it can now rule.
Conservatives love this because they're convinced that federal agencies are fundamentally activist and liberal while courts are increasingly conservative. And that's one way of seeing things. Another is that agencies have the expertise to know how to make a complex law executable while activist conservative courts increasingly just rule in favor of corporate interests.
As always, it's hard to know how this will play out in practice. The Court has been increasingly skeptical of Chevron over the years, so this ruling isn't a huge shock. But there's an irony to it. In the original Chevron case, the Supreme Court ruled unanimously that courts should defer to a conservative interpretation of an environmental law during the Reagan administration. The agency in question was the EPA, and the head of the EPA at the time was Anne Gorsuch Burford, mother of current Supreme Court Justice Neil Gorsuch. This means that Neil has voted to toss out the decision that allowed his mother to get her way.
Oh, did I mention that the ruling was 6-3? Of course it was.
I'm opposed to this ruling. The very last thing the United States of America needs is even weaker state capacity.
But I do note: Chevron deference didn't arise until 1984. So I'm trying to be optimistic: maybe it won't be that bad? It seems government agencies managed to get things done prior to the 1980s...
I suppose somewhere we can find a review article of how courts dealt with challenges to regulations prior to Chevron. It's possible it simply codified what had been practice earlier, laying out a rationale and explication that gave lower courts more clarity.
I think what this means in practice is that unless a law specifically forbids something or specifically allows something, reactionary fuckwads have license to bring everything to a screeching halt. That's what they've wanted all along.
The motivation is basically: so Republicans can say "nuh uh" to any law that doesn't explicitly say something isn't allowed.
It's the political version of "Mom, Brett won't leave me alone" followed by Brett protesting "I'm not touching her!" while doing the childish finger jabbing that stops just short of actually touching his sibling.
Even that's too generous. It means that if a conservative court doesn't like the way a law is implemented, they can strike it down regardless of what it actually says. We saw that with the Student Debt Relief stuff, where the majority engaged in an extremely tortured reading of legislation around it.
Right, the whole point of it is making it even easier to conclude in court that the law says whatever the (conservative) judges say it says.
Also, you'd better stop tormenting your sibling, Brett.
No doubt Gorsuch would refer back to his mom in a heartbeat given the opportunity.
Oh, did I mention that the ruling was 6-3? Of course it was.
Interestingly, on the January 6th obstruction case, the 6 justice majority included Justice Jackson, and the dissent was joined by Justice Barrett.
That's pretty much what it is - the right for conservative courts to selectively strike down regulations on whatever grounds they see fit. Chevron had already been more or less gutted by the Supreme Court with its "Major Questions" doctrine, but this just does away with even that formality.
So expect a lot more court challenges to regulations in east Texas courts, since not only are they full of hacks that will vote whatever the conservative advocacy position is, but they also seem to have a broad contempt for anything resembling standing when it comes to rulings.
The irony here is a little richer than indicated, I think, because iirc Gorsuch's mother was appointed by Reagan not just to run the EPA more modestly, but with the specific and declared aim of restricting it as much as possible short of starting to dismantle it. Chevron cleared the path for her.
Now the son says it isn't enough that agencies respond to their invented "unitary executive" (which the court is doing its best to ensure will be right-wing), but now they have to answer to lifetime-appointed right-wing judges instead. Just to make sure that the electorate can't have even indirect input for the foreseeable future.
One of the beauties of a common-law system, we're told, is that it's flexible and adapts seamlessly to changing circumstances. Hmm. I guess that can work pretty well for one side, anyway.
It is, as others also have observed, a massive power-grab by the Judiciary. The silly, almost self-refuting legal "logic" that purports to justify it is irrelevant. The Justices know better than almost anyone that Congress can't write laws at the level of detail that regulators write regulations, and they know perfectly well they have ultimate power of review. They just don't want any constraints on their actions.
And of course, this also satisfies the demands of corporations, who want no constraints on (or responsibility for) their actions either. At risk of injury or death due to an unsafe workplace? Sorry, you'll have to retain a lawyer and sue your employer, who has a lot more money and lawyers than you do. Being sickened by bad food or water or drugs? Sorry, get a lawyer, and make sure you have the resources for independent scientific analysis and extended litigation and appeal. Oh, and don't expect rapid progress through the courts, because they'll be clogged with thousands upon thousands of similar suits.
Republicans keep bragging about their "self-reliance" and complaining about Big Gummint trampling their "freedoms," and then they turn around and whine about everything being stacked against them. Well, their corporatist friends on the Court have just stacked the deck a lot worse. Thanks again, Republicans!
"Supreme Court decides courts are the very best at everything"
Isn't this the way it's SUPPOSED to work?
Hasn't the realist theory of American Politics been, for at least 200 years, that regardless of what other deformations may arise in terms of dynastic, plutocratic, or party politics, the saving grace of the system will always be that each branch (and sub-element within a branch) will prioritize ITS power above everything else, ensuring that total power grabs by Congress (or the President, or Admin Agencies, or, now, the Courts) will be countered by everyone else?
Troll.
Yay! In combination, recent rulings greenlight reactionary judges to rewrite rules as they see fit and accept "gratuities" for it, so long as it is cash after delivery.
You'll be able to smell the freedom soon enough, if you're near chemical plants or pig farms.
When I started out writing a class syllabus thirty-odd years ago (good God, has it really been that long?) the bit about classroom conduct was two lines long and the usual 'respect for others' bromide. The last time I had to do this, the classroom conduct section had swelled to almost a page, although admittedly a lot of the bloat came after personal cell phones. Here's a typical expansion: when I confiscated a student's phone, she said "You only said we can't talk to other people. You never said anything about texting."
You see where I'm going with this of course: The court is using its power to construct a ratchet of permissive indulgence, no matter how childish the objection.
So when can we expect the ruling that Presidents need absolute immunity because the judicial branch can't be trusted to rule fairly if one political party is doing a witch hunt against the other one?
Don't worry, NDA's and force arbitration clauses are fine.
Agencies don't have the expertise? Even though regulatory agencies are made up of experts in the fields and admins who rely on experts in the fields being regulated to devise appropriate regs to fit what Congress passed?
Congress, which is made up of mainly lawyers with no kind of other technical expertise, and subject to necessary compromising to get anything passed, so at best can just outline basic goals and principles?
And the final word being judges, who are either elected by Big Money or appointed through the influence of Ideological Big Money, and who have zero expertise in anything not law-related, if even that? The final word?
Add to this that Article III judges are appointed for life with (in reality) no means of removing them, other than death. Or retirement.
We're in a hole, all right, and the Constitution needs some serious amending if we are to keep any semblance of representative democracy. Sadly, the Sacred Founders made that really, really, REALLY hard to do.
It's actually quantifiable. The Congressional Research Service has fewer than a thousand professionals on staff; the largest group are lawyers, I believe. The courts have ... law clerks. The Executive, its departments and agencies employ some three-quarters of a million professional and technical employees, including scientists, engineers, medical personnel, technical experts, and, yes, lawyers. And as KD notes, rulemaking requires publication of drafts for public comment and other procedural steps to promote transparency and consideration of multiple viewpoints.
But then God talks directly to AJ Alito, so there's that.
This may seem like a small matter but I don't think it is. As things stand, the courts can barely keep up with caseloads. How are courts supposed to start writing all the rules to implement every law on the books? I mean what is the point of agencies even writing rules at all if the rules have no standing as a matter of law. This is just so nuts it's hard to comprehend how the government is even supposed to function. But I guess that's the point.
And now I guess Trump is a shoe in. So we are well and truly screwed for at least the next 30 years.
I think this is a symptom of the general belief that lawyers can solve any dispute, even ones that require specific expertise. The Common Law system of justice is particularly bad for this because it a is adversarial by design, whereas scientific decisions should be made by consensus. The conservatives on the Supreme Court certainly believe they can make better decisions than any expert in any field.
I can't wait until a conservative court rules that the FDA's approval of the day after pill is illegal, and nobody can buy one in Texas. That's going to be a great day.
"In the modern world, it's simply not feasible for Congress to write laws so detailed that corporations and people can act on them with any confidence."
That's a feature, not a bug.
It has been an article of faith on the right since at least Newt Gingrich that there is no such thing as expertise, that science is only an opinion and a liberal one at that.
So what does it mean? It means that it is now probably impossible to address climate change. That especially true if Trump wins. Four more years of just treading water, let alone moving rapidly backward will make it impossible to keep it below 2C.
And that also is a feature, not a bug.
I'm sure that if the "tip" each of the Corrupt Six expects is big enough, they'll rule however they're told to.
Is this so hard to figure out?
So, in the "you can't make this up" department we have this, courtesy of Scott Lemieux at LGM and starring two of our 6 self-appointed knowers of all things and Renaissance Persons Extraordinaire who don't need no stinkin' subject matter experts, John Roberts and Neil Gorsuch.
Roberts tells us today that the courts know all they need to know in order to review and pass judgment on highly technical questions.
Yesterday Gorsuch favored us with his Ohio v EPA majority opinion. The case dealt centrally with EPA rules about emissions of nitrogen oxides (older car buffs will know them as NOx, the reason we have catalytic converters and urea injection in diesels); these are combustion products that are major culprits in producing smog.
In his erudite opinion, our man Mr. Justice Gorsuch painstakingly explains how the EPA developed its rules, and in the process he mentions "nitrogen oxides" not a single time but refers 5 times to the pollutant at issue as "nitrous oxide." Nitrous oxide is also called laughing gas and is only a minor combustion product; most nitrous oxide in the air comes from soil organisms. Nitrous oxide is used by dentists and also by partiers.
Apparently neither Gorsuch, nor his clerks, nor the other four signers in the majority, nor their clerks, noticed this.
Presumably anyone in the minority who did notice kept quiet. I sure would have.
(link https://www.lawyersgunsmoneyblog.com/2024/06/meet-the-new-kings-of-the-united-states, quoting tweets from @seantankerous)
But in writing the opinion overturning the Good Neighbor Plan, Neil Gorsuch confused nitrous oxide (laughing gas’ and nitrogen oxide (greenhouse gas). So yeah, judges should be able to rule on anything.
Great article. Wow. Now that the courts have so much more law to administer, it might be time to expand the courts to include more judges so that laws can be speedily decided. Let's start with the Supreme Court, who believes it is intellectual enough to decide technical details concerning the safety and efficacy of pharmaceuticals over the PhDs and MDs in the FDA, flight safety controls over the senior engineers and PhDs at airplane manufacturers, and atmospheric modeling over the PhDs in Environment and Biology at the EPA. Since the judges require so much more expertise now, let's go ahead and add 15 more of them with a varety of these specialized degrees. Then we can be confident they can truly be neutral when deciding matters of great import between the people and the moneyed interests.