SCOTUS Executes Massive Power Grab, Congratulates Itself For 'Judicial Humility'

We're talking about Chevron, if you needed that narrowed down.

On Friday, SCOTUS launched the biggest wrecking ball yet at our functioning, democratic government. It came in the form of a case called Loper Bright Enterprises v. Raimondo, in which the court’s six conservative justices took the doctrine of stare decisis and used it as fishwrap for a pile of rancid herring. Judges can now take a red pen to federal regulations at will, rewriting any administrative rule they — or their sugar daddy benefactors — find objectionable. 

Having consolidated their stranglehold on the judiciary, and cognizant of the reality that Congress is broken beyond repair, conservative judges are moving swiftly to arrogate as much power to themselves as possible at the expense of the executive branch. And if that stretches the judiciary to the breaking point, flooding the docket with challenges to any and every agency action, well, so be it. 

Chevron Deference

Technically what happened on Friday is that the Supreme Court overturned the Chevron doctrine, which gave executive branch agencies broad latitude to interpret federal statutes. It took its name from a 1984 Supreme Court case called Chevron v. National Resources Defense Counsel, which began its life as a DC Circuit case called NRDC v. Gorsuch. The Gorsuch in question here was one Anne M. Gorsuch, Administrator of the EPA under President Reagan and mother of the future Supreme Court Justice who would one day carry on her fight to make the world safe for polluters.

Under President Carter, the EPA treated the Clean Air Act as a mandate to actually clean the air, subjecting construction projects within a larger facility to stringent permitting and review. But regulating big business to help the environment was not exactly Ronald Reagan’s bag, so, after Administrator Gorsuch was sworn in in 1981, she reversed the agency’s position and said that so long as the entire factory didn’t increase its emissions, replacing an individual smoke stack was no business of the government’s. 

NRDC sued to get the Carter-era regulations back, and the DC Circuit agreed that Gorsuch’s interpretation was contrary to both precedent and Congress’s intent “to ameliorate the air's quality.” (Incidentally, the NRDC v. Gorsuch decision was authored by future Supreme Court Justice Ruth Bader Ginsberg. Such is life in Washington, DC.)

For reasons that require no explication, the oil company Chevron intervened, inadvertently giving its name to a federal doctrine which provided the backbone for American administrative law for the past 40 years. Because when the case reached SCOTUS, Justice John Paul Stevens, writing for a unanimous court, reversed the DC Circuit and articulated a two-part test for evaluating challenges to federal regulations and rule making.

First, courts look to the language of the statute which authorizes the agency to act. If the law is unambiguous in terms of what it delegates to the agency, that ends the inquiry. But if there is ambiguity, the court should defer to any “reasonable” interpretation by the agency in implementing Congress’s demands. 

“The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress,” Justice Stevens wrote. “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.”

If, and only if, that regulation is unreasonable should the court attempt to rewrite it, as judges are neither “experts in the field” nor political actors tasked with enacting the voters’ policy preferences.

“While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities,” the Court wrote, adding that “federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.”

That has been the rule for four decades, and, for the most part, liberals have lived under it happily. As the political party that actually believes in passing laws and using the power of government to help people, deference to agency interpretation has worked out pretty well for us. And in the era when we had a functioning judiciary, any gross Republican executive excesses were likely to get pared back.

But Republicans have ceased to have any policy platform besides tax cuts and “liberal tears.” And now they’ve finally managed to wrest control of the judiciary, not just via the Supreme Court, but by seeding the federal bench, particularly the Fifth Circuit, with lunatics willing to invalidate any Democratic president’s policy on the slimmest of pretexts. Chevron deference was anathema to this project, and so it had to go. 

“At this late hour, the whole project deserves a tombstone no one can miss,” Justice Gorsuch snarked in 2022, presaging Friday’s ruling.

Oddly enough, the it was the unassuming herring which finally managed to inter it.

Loper Bright

In 1976, Congress passed the Magnuson–Stevens Fishery Conservation and Management Act to preserve commercial fishing stocks. The law established regional councils vested with various powers, including the authority to place government monitors on fishing boats to monitor compliance. In 2020, Trump’s Commerce Secretary Wilbur Ross enacted rules requiring boat owners to pay for the monitors, and was promptly sued in DC and Rhode Island by two fishing companies named Loper Bright Enterprises and Relentless, Inc. 

It seems pretty clear that Congress intended fishing companies to pay for the observers — after all, the statute specifically authorizes the Secretary to sanction boat owners who don’t pay. But there is no clause in the Act explicitly authorizing the Commerce Department to charge a fee, and so the plaintiffs argued that the rule was an “unconstitutional power grab [that] not only threatens the viability and livelihood of Plaintiffs but also the many others who draw their livelihood from the sea.”

This may have been something of an exaggeration, since there were liberal fee waivers and provisions for electronic monitoring on vessels intending to bring in less than 50 tons of fish. But the herring fishermen were never the point of this exercise. This was always about taking down Chevron — that’s why both plaintiffs were represented by lawyers from Koch brothers-funded “non-profits.” Indeed, the District and Circuit Courts duly applied the Chevron analysis and upheld the regulatory scheme, and by the time the case got to the Supreme Court, the only question considered was whether to overrule Chevron or to pare it back significantly.

The Tombstone

On Friday, Chief Justice Roberts delivered the kill shot on behalf of the Court’s six conservatives. Citing Marbury v. Madison for the proposition that “it is emphatically the province and duty of the judicial department to say what the law is,” he called it is an abdication of constitutional duty for courts to allow the agency which has to implement the statute to interpret it. 

Courts must “use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity,” he asserted glibly, adding that “in an agency case as in any other, there is a best reading,” and judges have an obligation to divine what that is.

“Congress expects courts to handle technical statutory questions,” he insisted, scoffing that “agencies have no special competence in resolving statutory ambiguities” and so deferring to experts is mere “defeatism.”

“Score one for self-confidence; maybe not so high for self-reflection or -knowledge,” Justice Kagan clapped back in a brutal dissent joined by the Court’s three liberals.

Because of course most statutory ambiguity is the result of sloppy drafting, as it clearly was in the Chevron case. If Congress forgets to define a term or omits to specifically enumerate an agency’s remit down to the lowliest comma, you can’t simply infer that it was counting on the courts to fill in the blanks. Particularly since Chevron has been the law of the land for 40 years, during which Congress could have passed legislation saying, “No, we really do want to make the courts the final word on this.” It never did, tacitly endorsing the arrangement under Chevron.

Judges’ manifest unsuitability for this task is especially true when it comes to hypertechnical issues, such as: 

When does an alpha amino acid polymer qualify as a “protein” under the Public Health and Safety Act? What constitutes a “distinct” population of squirrels for purposes of the Endangered Species Act? How should the Centers for Medicare and Medicaid Services define a “geographic area” for purposes of the federal reimbursement scheme?

As Justice Kagan notes, these are all real questions faced by jurists who applied the Chevron doctrine, and, finding a statutory ambiguity, deferred to the responsible executive agency’s interpretation of the law.

“Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not,” Kagan wrote pointedly. “Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not.”

Power Grab >>>> Precedent

In an effort to disguise this gross breach of stare decisis, the Chief Justice nattered on for a dozen pages about the storied history of judicial responsibility for statutory construction, replete with references to the Federalist papers and, of course, Marbury v. Madison. Justice Gorsuch, who penned a concurrence almost as long as the main opinion, went back even further to 18th century England. Although his point seems to have been to rubbish the idea of stare decisis itself so … points for honesty, I guess.

In reality, the court has once again blown up longstanding precedent, this time to enable the federal judiciary to rewrite statutes at the whim of the oligarchs who finance litigation … not to mention tricked out RVs, Alaskan fishing trips, and galas at the Supreme Court Historical Society. 

“The majority cannot destroy one doctrine of judicial humility without making a laughing-stock of a second,” Justice Kagan wrote in disgust, adding that “It is impossible to pretend that today’s decision is a one-off, in either its treatment of agencies or its treatment of precedent.”

Meanwhile, Justice Gorsuch, a tepid glass of skim milk who is laboring under the delusion that he’s Antonin Scalia reincarnated, took a victory lap. After congratulating the the Court’s conservatives for their great feat of “judicial humility,” he celebrated the “tombstone on Chevron no one can miss.”

“If opinions had titles, a good candidate for today’s would be Hubris Squared,” Justice Kagan retorted. “The majority disdains restraint, and grasps for power.”

Three more cases to go …