SCOTUS is poised to take a sledgehammer to federal agencies
Why overturning the Chevron precedent would be very big (and bad) deal.
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Since conservatives fully captured the US Supreme Court during the Trump administration, right-wingers have been racking up wins.
In 2022, religious conservatives got their wish when the Court overturned Roe v. Wade. Now, rich conservatives will likely get theirs too as the Court appears poised to overturn the Chevron Doctrine.
During last week’s oral arguments on a pair of cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the Court’s conservative majority signaled its eagerness to get rid of a 40-year precedent governing how federal courts review agency decisions. The demise of Chevron will be as much of a shock to the system as getting rid of Roe was, if not more.
“Chevron” is shorthand for 1984’s Chevron v. National Resources Defense Counsel, where the United States Supreme Court held that courts owed deference to an agency’s interpretation of a statute if that interpretation was based on a permissible construction of the statute. In practical terms, what this meant was when a plaintiff sued the government over an agency decision or rule, the inquiry by the courts was limited to whether the agency’s understanding of the underlying statute was correct.
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To anyone not brain-poisoned by conservative dogma, this decision makes intuitive sense. Congress is not capable of passing laws with a granular enough level of detail to cover all possible circumstances. This is particularly true when those laws relate to highly technical issues like pollution. Government agencies are staffed by experts who understand those highly technical issues, can enact and enforce regulations based on their expertise, and alter those regulations as knowledge evolves. All of this adds up to what can be referred to as the administrative state — what conservatives sneer at as “the deep state.”
But after hearing last week’s oral arguments in Loper Bright and Relentless, it’s clear that Chevron will be overturned or rendered toothless.
Right-wing justices have been looking for an excuse to kneecap federal agencies
In theory, these two cases are about the narrow question of whether the government can require fishing companies to pay for federal observers on their boats.
Fisheries must have government observers who monitor the catch and ensure that waters aren’t overfished. The law doesn’t say whether the fisheries or the government has to pay for those observers, hence the lawsuits, as the agency has determined the fisheries must pay. But the fisheries that brought the lawsuit aren’t actually out any money because the monitoring program isn’t currently operating due to a lack of funds.
The government’s filings in the lawsuits also pointed out that the fisheries have been reimbursed for past monitor costs. In theory, there should be no case here, as the fisheries aren’t being harmed, but since the current Supreme Court is more than happy to take cases based on outright lies as a way to make sweeping changes in the law, here we are.
The Court did not agree to hear these cases because it is particularly concerned with the issue of how to best ensure herring aren’t overfished. The Court agreed to hear these cases because it is packed with justices who have signaled for years that they want Chevron gone.
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Justice Neil Gorsuch’s views on getting rid of Chevron were well-known at the time of his appointment to the bench by Trump. When the Trump administration was pushing Brett Kavanaugh’s nomination, it lauded his hostility to Chevron and his general anti-regulation stance. Justice Samuel Alito, in a speech to the hyper-conservative Claremont Institute, complained that Chevron deference was “a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”
And Clarence Thomas? Thomas was relatively pro-Chevron until 2020, at which point he suddenly reversed course. Democrats called on him to recuse himself from these cases because of his past relationship with the Koch network. In September 2023, ProPublica broke the story that Thomas had secretly participated in fundraising events for the Koch network. The fisheries plaintiffs are represented by conservative groups with ties to the Koch network. Needless to say, Thomas did not recuse.
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During oral arguments, Gorsuch pretended he was not concerned about how Chevron deference would harm businesses, even though the cases before him were brought by businesses backstopped by billionaires like the Koch brothers, who hate regulations. Instead, he said his real concerns were for “the immigrant, the veteran seeking his benefits, the Social Security Disability applicant, who have no power to influence agencies, who will never capture them.” This is rich coming from someone who is so thoroughly co-opted by big business that he once wrote a dissent saying that a trucker deserved to be fired when he left his trailer to seek safety and warmth after waiting several hours in an unheated truck cab for a repairman to fix his locked brakes. When the trucker left, the temperature in his cab was -14, and he was in distinct danger of freezing to death. Gorsuch is no friend to the little guy.
Justice Kavanaugh said Chevron “ushers in shocks to the system every four or eight years when a new administration comes in, whether it's communications law or securities law or competition law or environmental law.” Kavanaugh is correct that different administrations will take different views on laws at the agency level, but if Kavanaugh’s view prevails, what we have is much messier. As Justice Elena Kagan pointed out during the oral arguments, “agencies know things that courts do not.”
Justice Ketanji Brown Jackson’s questioning during oral arguments exposed that getting rid of Chevron gets rid of the ability of agencies to do much of anything. She noted that, as an example, there is statutory language requiring the FDA to perform “adequate and controlled investigations” regarding drug trials, but there is no further language in the statute: “If I'm an agency and I'm trying to be responsible, how is this going to work as a practical matter? Is the agency going to go to court every time it gets one of these undefined terms in a statute and seek, you know, a declaratory judgment as to the meaning of ‘adequate and controlled’ and ‘well-controlled investigations’ before it goes forward with its policy?”
After counsel for the fisheries said no, that was not the case, Justice Jackson posed another question: “So the agency can come up with its own definition and implement it and then wait to be sued with respect to that, and every term undefined in a statute we're going to have litigation.”
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It’s telling that the attorney for the fisheries had no real answer for that, instead stumbling and saying, “I think what the agency has to do is what everyone else has to do, which is try to figure out what the law means and then act accordingly, and if someone challenges that, then that'll get sorted out. If there's a stat, a legal question, a statutory interpretation question, then that'll get sorted out by the courts. But the agency isn't, like, paralyzed.”
The agency is actually paralyzed in this situation. If it is not allowed to interpret a statute and implement regulations, it can’t function. The alternative to the administrative state is chaos. Congress exists in a near-constant state of gridlock, so the notion that it will somehow unfreeze and start passing scores of laws clarifying difficult and arcane questions of, say, workplace safety, is ridiculous. And even if hardline Trumpists did not largely capture the lower federal courts, they are by their very nature fractured.
There are 94 federal district courts and 13 federal appellate courts. There are nearly 900 federal judges. Getting rid of agency deference means that the fate of regulations will always be a crapshoot: did you land a judge who likes regulations or one who hates them? Given how good the right has gotten at judge-shopping — filing cases in jurisdictions where they’re guaranteed to get a conservative appointee — getting rid of Chevron means that all a plaintiff needs to do to make an agency regulation go away is to get it in front of the right judge.
The death of expertise
There are two key reasons that conservatives are pushing so hard for the demise of deference. First, big business often loses when courts defer to agency interpretations of laws. As People for the American Way explained, Chevron deference was fundamental in court decisions providing compensation for miners with black lung disease, upholding Environmental Protection Agency (EPA) rules tightening lead-paint hazard requirements, and forcing cable companies to provide broadband access. In each situation, the courts deferred to the agency’s expertise and understanding of the relevant statutes.
Second, conservatives want Chevron gone because getting rid of agency deference increases the power of the federal courts. If the courts no longer need to pay attention to agency experts and Congress remains as dysfunctional as it has been for decades, judges become, as Justice Jackson said during oral arguments, “uber-legislators.”
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Federal judges will have the sole power to interpret the words of a statute despite not having any particular expertise in, say, how many parts per million of ozone particles over an eight-hour period are dangerous to human health. A judge who doesn’t believe in climate change and thinks any restrictions on oil and gas producers are unfair can ignore experts at the EPA. A judge who doesn’t believe in vaccines can throw out workplace vaccine mandates promulgated by the Occupational Safety and Health Administration (OSHA). Since Trump succeeded in stuffing the federal courts full of judges who think this way, these types of decisions will be inevitable.
The Trump era highlighted the fragility of the American system of checks and balances, as everyone saw that many of the ostensible checks on Trump’s behavior and power were unenforceable and useless. The demise of Chevron will further alter that balance, tipping an immense amount of power to the judicial branch. That branch is currently stuffed with conservatives with lifetime appointments at all levels. Because of that, the decades-long conservative project to get rid of the administrative state and return to a time where businesses could do whatever they want to their workers and to the environment is now right around the corner.
That’s it for today
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Conservatives would love to return to the Gilded Age and the era of the robber barons, where greed has no bounds. I'm a retired academic whose expertise is Federal tax law so I'm familiar with regulations, administrative rulings and court decisions. I also know that the English language has so many words that mean the same thing, or almost the same thing, or have no real definition (i.e., income). It is not possible to write a law that encompasses perfect definitions and covers all the bases. The example I used in class was to imagine you're a parent who "grounds" your child. What does it mean to ground your child. Can they go outside (and if so, how far outside), if they can go outside can they talk to non-family members outside, can they attend extra-curricular activities, use their phone or computer or other electronic device, go to the library, and on and on and on. This is an assault on expertise and it doesn't go on in business organizations. Look at all the different departments in any medium or large corporation. The CEO isn't making the day-to-day operating decisions, there are "experts" within the company who do that.
This is the next big decision I've been dreading them getting around to, we've been kneecapping our few regulatory agencies in staff and budget and every other way possible and I fear this is going to be to regulatory agencies what Citizens United was to transparency in political donations.