The destruction of the regulatory state is already happening
The destruction of the regulatory state is already happening
The post-Chevron world is here.
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It’s been barely a week since conservatives on the US Supreme Court radically upended the balance of power between the branches of government, giving the federal courts the exclusive power to interpret statutes rather than deferring to agency experts. And we’re already seeing impacts on the ground.
Right-wingers have been in the habit of running to their preferred courts to get regulations overturned, but the decision in Loper Bright v. Raimondo, which officially destroyed agency deference, will make it easier — even routine — to block every Biden administration rule they don’t like.
Lawsuits to invalidate specific rules had been proceeding through the federal courts before Loper Bright, generally arguing that agencies exceeded their authority in promulgating a rule. These lawsuits exist in no small part because the Supreme Court made it clear they would destroy Chevron deference for years now, with Justice Neil Gorsuch having led the way well before his appointment to the Court.
Trump appointee Sean Jordan, who sits in the reliably hard-right Eastern District of Texas, was so eager to block a Biden administration’s overtime rule that he dropped his decision the same day Loper Bright came out. It runs 36 pages and mentions Loper Bright multiple times, which means either Jordan was so confident of the Supreme Court decision that he either wrote it in advance or he hurried to stuff Loper Bright into his already-written opinion.
Jordan’s opinion also rests heavily on dictionary definitions rather than expertise from the Department of Labor, which issued the rule. So now, the rule that would have made 4 million more Texas workers eligible for overtime, and thus more pay, is blocked thanks to a hurried read of a SCOTUS opinion and Webster’s Dictionary.
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What this mean is that anytime a business doesn’t like a federal rule, it can just sue. It promises to be a free-for-all. Three hospitals in New Jersey sued HHS the day Loper Bright came down, saying the agency’s interpretation of a statute governing Medicare reimbursement is unlawful.
In another case, filed before Loper Bright, a trucking company challenging the Biden administration’s rule that addressed misclassification of independent contractors filed a memorandum on July 2 arguing that Loper Bright means the court should not defer to the Department of Labor’s interpretation of the law. The next day, Trump appointee Ada Brown of the Northern District of Texas enjoined enforcement of the Biden administration’s rule prohibiting non-compete agreements but limited the injunction to the plaintiffs, which are various pro-business groups like the Chamber of Commerce.
Taken together, it’s evident that any moves the administration makes to tilt the playing field even slightly in favor of workers are designed to fail once they reach a conservative federal judge. And thanks to right-wing judge shopping, plaintiffs are often able to get their case in front of an anti-regulation judge they know will be favorable to their challenges.
Bigotry from the bench
Unsurprisingly, much of the assault on administration rules relates to any regulation that would protect transgender people.
Four days after Loper Bright was handed down, another Trump appointee, Judge John W. Broomes in Kansas, enjoined the Department of Education from enforcing its Nondiscrimination on the Basis of Sex in Education Programs rule in Kansas, Alaska, Utah, and Wyoming. The Department of Education spent two years finalizing the rule, which would have prohibited discrimination based on gender identity under Title IX.
The unofficial text of the rule, which runs 1,577 pages with supporting material, is jam-packed with legal analysis. Hundreds of pages are spent explaining how the DOE considered and addressed public comments and the document details the mental health impact of discrimination against LGBTQ students.
Broomes’s expertise is in natural resource law, a background that does not lend itself to a detailed understanding of Title IX, sex discrimination, or gender identity. But none of that matters.
His opinion sneers about “self-professed and potentially ever-changing gender identity” and insists that things like using correct pronouns for students and allowing them to use the bathroom that conforms with their gender identity is an issue of “vast economic” significance. Given that the only costs of the rule are things like updated administrative guidance and perhaps hiring additional Title IX staff, the idea it is a vast economic question is, to put it politely, a reach. Instead, Broomes sided with the conservative plaintiffs, including Moms for Liberty and an Oklahoma student who asserted that using the correct pronouns for other students violated her religious beliefs.
Because of this mix of conservative state litigants, private anti-trans groups, and an Oklahoma student, the extent of Broomes’s injunction is even weirder than the patchwork blocking of the HHS rule.
Besides blocking the rule entirely in four states, the rule is also blocked for the schools attended by the members of two private plaintiffs, Young America’s Foundation and Female Athletes United, and all schools attended by the children of members of Moms for Liberty. So now, if you are a transgender student unlucky enough to attend school anywhere in the country where a child of a Moms for Liberty student also attends, you’re out of luck. If your school is free of children of book-banners, you get the protection of the federal rule — unless you live in Kansas, Alaska, Utah, and Wyoming, in which case it doesn’t matter what school you go to.
Over at Law Dork, Chris Geidner has a good rundown of not just how the courts are sledgehammering LGBTQ rights, but also how having courts, rather than regulators, make these decisions results in an uneven patchwork of rulings over a Health and Human Services rule that prohibited health care providers from discriminating based on gender identity.
Only five days after Loper Bright was issued, three separate federal courts issued rulings blocking parts of the HHS rule. There’s no chance that William Jung, a Trump appointee to the federal district court for the Middle District of Florida, hadn’t already written most of his decision before Loper Bright was issued, but the case gave him far more ammunition. Fung’s ruling in Florida v. Department of Health and Human Services blocked part of the Nondiscrimination in Health Programs and Activities rule from going into effect — but only in Florida.
HHS first proposed these protections in January 2022 and spent over two years soliciting comments and refining the rule before issuing it in May 2024. This lengthy process ensures the rule is well-grounded and addresses the public's concerns. In contrast, Fung spent less than two months with the case and, in blocking the rule, relied heavily on material from anti-trans activists such as the Cass Report. The Cass Report is a methodologically flawed document that has been used in Great Britain to greatly narrow services for transgender youth and by American conservatives to push for bans on gender-affirming care for minors. This led to the specter of Judge Jung, whose background is in white-collar criminal defense, traipsing through complex medical material on puberty blockers as if he were an expert.
Similarly, another Trump appointee to the federal district court in the Eastern District of Texas, Judge Jeremy Kernodle, who has an undergraduate degree in business administration and spent his legal career in private practice, declared that gender transition services were “novel,” despite their use in America dating back over 50 years. He also cited the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), a manual that standardizes classifications of mental health disorders, as supportive of his belief that it was “brash” for the administration to issue a rule when the DSM-V said there were “no large-scale population studies of gender dysphoria.”
This is cherry-picking at its finest. Kernodle latches onto a single statement in the DSM-V while ignoring that the American Psychiatric Association, which publishes the DSM, issued a position statement back in 2020 that wholly supported affirming treatment for trans youth, including prescribing puberty blockers and providing support for medical transitioning. The organization also has a lengthy guide to working with transgender people that outlines appropriate medical interventions. But in the brave new post-Chevron world, Kernodle’s biases carry more weight than the knowledge of experts ever could.
Kernodle’s ruling, which invalidated the whole of the HHS rule, applies only to Texas and Montana. However, a third judge, George W. Bush appointee Judge Louis Guirola Jr., of the Southern District of Mississippi, issued a nationwide injunction, but only pertaining to part of the HHS rule. Now, whether someone is protected by the HHS rule depends on where they live and what part of the rule is at issue.
The heyday of junk science
You can expect much more like this in the wake of the destruction of Chevron deference. Now that federal judges are the only ones “qualified” to interpret the governing statutes, plan on seeing conservative jurists deploying junk science and personal opinions to get to their preferred conclusion while ignoring the expertise of agency employees.
Additionally, rather than having a well-reasoned rule that applies uniformly across the country, courts will invalidate or uphold rules in a piecemeal fashion based on the whims of judges who are in no way qualified to interpret complex regulatory issues. Those judges, though, are extremely well-qualified to find a way to strike down regulations whenever conservatives demand it. The demise of the regulatory state is as grim as anyone could have possibly guessed, and absent court reform, there seems to be no way out.
That’s it for today
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Everyone who thought about the consequences of overturning Chevron knew this was going to happen, and it's only going to get worse and uglier. If a judge's ruling causes harm or a death - oops - they have immunity. We need to win the WH, take back the House and hold, or expand, the Senate. Then we get rid of the filibuster and expand the Supreme Court along with other Court reforms. We discussed Biden's age, there is no "solution" that isn't fraught with unknowns and problems. Others have said this, but this isn't fantasy football. Remember, the frenzy around Biden's age began with Special Counsel Robert Hur (a Republican) when reporters were more concerned about his age instead of discussing how Biden, as opposed to Trump, dealt with classified documents. The MSM is openly manipulating and shaping the news for their own purposes, and have lost objectivity. We've seen this for every Democratic Presidential candidate going back decades. Spain, the UK and France were able to unite and win over their version of Republicans and so can we. If you need more convincing read Project 2025.
The decisions of this court are a good reason for American voters to usher in a massive blue wave this November. If anything, it can balance out a far right SCOTUS that is recreating pre-New Deal America.