#Chevron v. National Resources Defense Council

[ablsk]

This is bad, bad.

Washington — In a blockbuster decision Friday, the Supreme Court overruled a 40-year-old decision that directed federal courts to defer to agencies' interpretation of unclear laws enacted by Congress.

The landmark ruling from the court, which divided 6-3 along ideological lines, curtails the regulatory power of federal agencies and is expected to restrict the government's ability to impose regulations on areas like the environment, health care and the workplace. 

The decision marks a major victory for the conservative legal movement, which has long called for dismantling the framework that arose out of the 1984 ruling in a case known as Chevron v. National Resources Defense Council.

The justices did just that with their ruling in a pair of cases involving a 2020 federal regulation that required owners of vessels in the Atlantic herring fishery to pay for monitors while they're at sea.

[justinspoliticalcorner]

Ian Millhiser at Vox:

In the less than three years since President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans. In each of these decisions, the Court relied on something known as the “major questions doctrine,” which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial.

This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy. And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government. Consider, for example, the Court’s recent decision in Biden v. Nebraska, which invalidated a Biden administration program that would have forgiven up to $20,000 in debt for millions of student loan borrowers. The Court did so despite a federal law known as the Heroes Act, which permits the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs ... as the Secretary deems necessary in connection with a war or other military operation or national emergency.”

So Congress explicitly granted the executive branch the power to alter or forgive student loan obligations during a national crisis like the Covid-19 pandemic. But six justices, the ones appointed by Republican presidents, decided that they knew better than both Congress and the executive. The premise of the major questions doctrine is that courts should cast an unusually skeptical eye on federal agencies that push out ambitious new policies. As the Court said in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” In practice, however, this doctrine functions more as a freewheeling judicial veto than as a principled check on agencies. The Heroes Act, after all, is crystal clear in giving Education Secretary Miguel Cardona — and not the Supreme Court — final say over which loans are forgiven during a national emergency. It is likely, moreover, that, although the Court did not invoke this doctrine once during the entire Trump administration, these justices will continue to wield this doctrine aggressively for at least as long as President Biden remains in office, fundamentally altering the balance of power among the three branches of government — and between the Democratic and Republican Parties.

A brief history of the major questions doctrine

The full origin story of the major questions doctrine is also an important chapter in one of the most important debates in US law: When should judges, who are not elected, defer to the two branches of government that are actually accountable to the American people? The question of where exactly the doctrine comes from is nearly as contentious as the doctrine itself. Justice Neil Gorsuch has argued that it stretches back at least as far as an 1897 Supreme Court decision involving railroad prices. Other conservative legal experts, including former federal appellate judge Thomas Griffith, point to the Court’s decision in FDA v. Brown & Williamson Tobacco (2000) as “the seminal statement of the major questions principle.” The reality is more nuanced. If anything, the Court has applied two entirely different versions of the doctrine in the last several decades — a weaker form that the Court announced in Brown & Williamson, and the much stronger form that the Court has used more recently to veto Biden administration policies. [...] The reality is more nuanced. If anything, the Court has applied two entirely different versions of the doctrine in the last several decades — a weaker form that the Court announced in Brown & Williamson, and the much stronger form that the Court has used more recently to veto Biden administration policies.

[...] In 1984, less than six months before President Ronald Reagan won reelection in a landslide, the Supreme Court handed down its decision in Chevron v. National Resources Defense Council. Chevron dealt with a perennial problem that will arise in any system where a legislature delegates policymaking authority to government agencies like the EPA or the FDA. Sometimes, the federal law laying out an agency’s authority is ambiguous, and it’s not entirely clear whether the agency is allowed to regulate in the way that it wants. According to Chevron, courts should typically defer to an agency’s reading of a federal law if that law’s meaning is unclear. Such deference made sense, according to the Chevron opinion, for two reasons. The first is that “judges are not experts” in the wonky questions that often come before federal agencies. And it makes more sense to give the final say on questions of policy to experts, rather than to black-robed lawyers who may not know anything at all about, say, how much nitrogen should be discharged by a wastewater treatment plant. [...]

The Heroes Act, in other words, is the equivalent of a parent who told a babysitter to “make sure the kids have fun” while simultaneously handing the babysitter a guidebook on Disney vacations, a list of hotels near the park, and a set of Mickey Mouse ears for each of the children. All of which is a long way of saying that it is difficult to take the major questions doctrine seriously. The Court applies it in a haphazard way. It’s never settled upon an explanation for why this doctrine exists. And, when individual justices have attempted to offer such an explanation, their arguments cannot be squared with the Court’s actual decisions applying the major questions doctrine. Worse, the doctrine is part of a 40-year cycle where the Court read the power of agencies to set federal policy expansively while the Republican Party was politically ascendant, and then reined in the executive branch once it was controlled by Democrats. The whole point of decisions like Chevron is that they are supposed to prevent this kind of partisan behavior by judges. By instructing judges to stay out of policy matters that Congress delegated to a federal agency, regardless of whether that agency is led by a Democrat or a Republican, courts ensure that the voters will have the final word on federal policy, rather than a handful of lawyers in robes. But this Court does not believe in such deference, at least as long as Joe Biden is president.

The radical right-wing SCOTUS has essentially acted like a third legislative chamber, which makes the USA effectively a tricameral nation. Their rule has invented the "major questions doctrine" to impose their will on several issues, such as student loan forgiveness, COVID vaccine mandates, and environmental regulations.

[robertreich]

Corporations Have Been Salivating Over This SCOTUS Decision 

The Supreme Court seems to have no problem regulating women’s bodies. But when it comes to regulating big business, they may be ready to end 40 years of established law. Let me explain.

The Court is hearing a pair of cases that could upend federal regulations designed to protect us. At risk is the Biden Administration’s entire climate agenda, the power of the government to approve and regulate drugs, and even the safety and quality of the food we eat, the water we drink, and the air we breathe.

And big corporations are salivating for a ruling that goes their way.

So what’s putting all of this at risk? It’s a challenge to something known as the “Chevron” Doctrine, a legal precedent established by the Supreme Court’s ruling in the 1984 case Chevron v. Natural Resources Defense Council. That case held that whenever any regulation in a law is unclear, it should be the federal agencies, not the courts, that interpret and implement it. This makes sense because unlike courts, federal agencies are staffed with scientists, researchers, and engineers — actual experts in the fields they’re regulating.

But now, a pair of Supreme Court cases challenging the doctrine could shift this power to the courts, stripping federal agencies of this key role of interpreting and implementing our nation’s laws.

If non-expert courts become the sole interpreters of the nation’s laws, a single activist judge, carefully selected by plaintiffs, could invalidate all the regulations of a federal agency charged with protecting the public.

No wonder the big banks, fossil fuel companies, and pharmaceutical giants, who hate the power of federal agencies to limit their profits, have been trying for years to end the Chevron Doctrine. And this time, they think they have the votes on the Supreme Court to do it.

If agencies are stripped of their power to regulate, the big losers will be the American public. We need real experts tackling today’s complicated problems, not judges who think they know better.

We also need to see the potential fall of the Chevron Doctrine for what it is: a power grab by corporate interests, allowing them to shop for judges who will strip agencies of their power to protect the public.

[odinsblog]

And this really is a case about the power of government agencies

The Chevron doctrine, it arises from a case, Chevron v. Natural Resources Defense Council, from 1984. And the idea behind the Chevron doctrine is that courts should defer to a federal agency's interpretation of a federal law that it administers as long as that interpretation is reasonable. So even if a court might look at the statute and come to a different conclusion, as long as the agency's interpretation is reasonable, courts should defer to it.

So there are two steps. First, the courts determine whether or not the statute is ambiguous. And if it is ambiguous, then the courts defer to the agency's interpretation.

And the idea is that when Congress writes a law, it may not think of all of the details. It may not have the expertise that a federal agency has. And so that the federal agency can fill in the gaps when it is interpreting the law.

And the Chevron Doctrine has had sort of a target on its back for some time now with conservative lawyers, conservative law professors, who believe that there shouldn't be a deference to any agency's interpretation of the law. That Congress's job is to write the laws, and then it's the job of courts to say what they mean. And so the Supreme Court has had several requests over the last few years to reconsider the Chevron Doctrine, and it turned those down until last year, when it agreed to take up a pair of cases challenging a regulation issued by the National Marine Fisheries Service that requires a fishing boat to pay for the costs of having an observer come on board and stay on board to monitor the boat's compliance with fishery regulations to make sure that they are not overfishing.

So basically, this would shift power, right from agencies to basically to Congress and judges.

With the caveat that because Congress is having a hard time doing much of everything, what it really does is shift power directly to courts. And as I said, I think it is of a piece with this broader theme that the court, this present court has come up with. We have things like the Major Questions Doctrine, which is a doctrine that sort of doesn't have roots in the Constitution, doesn't even have a long history as an interpretive issue, but the court has been invoking it in recent years, again, to do the same thing, which is to say Congress has to be incredibly, incredibly, incredibly, incredibly specific in laying out how a statute is gonna do what it does.

And if it fails to be specific, then it's not a good statute. And we've seen a whole bunch of things. In the very recent past, we've seen the court hobble the EPA's ability to do what it wants to do, invoking the Major Questions Doctrine.

It's another version of the Chevron deference, which is a claim by the court that if Congress wants to do something, it has to do something so, so specifically that there's no ambiguity. And as Chevron does, Chevron suggests that if there is ambiguity in a statute, then you go ahead and you defer to the agency itself, presumably with all its expertise and its scientists and its understanding of how we go about regulating. This is an effort to say, nope, that's not good enough either.

And so what it really effectively does, whether under the guise of Chevron deference or the major questions doctrine, is it spikes authority either back to Congress to fix regulations, or as we're seeing happen in real time, it simply spikes authority right back to the courts. And it arrogates to the courts the power to decide all sorts of public health questions. Last year, the court started to decide what Swampland was under the Clean Water Act, what emissions are under the EPA regulations, what health protections are under COVID.

And so it's really a massive arrogation to the court to do a whole bunch of things that at least some critics say the court doesn't have the kind of technical expertise to do.

And I think that you do have a feeling coming again from some of the justices, that school boards don't know what they're doing, that entities that give out gun licenses don't know what they're doing, that the justice department is all in the tank for Joe Biden and against Donald Trump. So at every single level of government, you're hearing the court raising questions. Last two weeks ago, it was ATF and bump stocks, right?

And I think one of the things that's been so destabilizing to this particular court, in addition to the ethics claims and the claims that it's off the rails in terms of personal conduct of some jurists, is that when you are overturning precedent willy-nilly, as they did in Dobbs, as they did in Brew in the Gun case, as they've been doing in case after case, the American public, separate and apart from the idea that the justices, some of them are unethical, start to have real doubts about whether this court is just a political branch that changes its mind based on political composition. And that's the worst possible outcome for the court. And yet I think that separate and apart from judicial conduct, we are in a deep, deep moment of doubt about the court as anything other than what looks like now to be a political branch that's just kind of changing the law as it goes along.

—The Dangerous Impact of This Supreme Court’s Decisions

[mariacallous]

US environmental law is a relatively young discipline. The Environmental Protection Agency is a little more than 50 years old, and the Clean Air and Clean Water acts—legislation we today see as bedrocks of public health and environmental safeguards—were passed in 1963 and 1973, respectively. When the case that would become Chevron v. Natural Resources Defense Council was filed in the early 1980s, the EPA was just beginning to pump out rules that would have major economic consequences for business and industry.

In its decision last week overturning Chevron deference—a crucial legal precedent that gives federal agencies the ability to interpret laws that are otherwise vague or ambiguous—the Supreme Court has taken the future of an incalculable number of regulations on public health, clean water, and clean air out of the hands of scientists for organizations like the EPA and passed it along to nonexpert judges who will hear challenges to these regulations in court.

“Anybody who doesn’t like a federal-agency regulation can now bring it before a court,” said Jillian Blanchard, a director at Lawyers for Good Government. “It’s scary.”

Overturning Chevron is just a cog in the larger plan to dismantle the administrative state and environmental law as we know it—and the ultraconservative forces and fossil fuel defenders, like the Koch brothers, behind it are only getting started.

Ironically, the Chevron decision was initially seen as a win for polluting industries. The Clean Air Act mandates that new stationary sources of pollution go through an agency review, but it fails to define what exactly a source is. In the early 1980s, Reagan’s EPA—headed by Anne Gorsuch, the mother of current Supreme Court Justice Neil Gorsuch—expanded the definition of source to mean an entire factory or complex. This significantly cut down on red tape for polluting industries, which previously had to go through government approval processes to add individual smokestacks to larger facilities. The National Resources Defense Council sued the EPA and won; Chevron interfered and took the case to the Supreme Court, where the justices ruled 8–0 to reverse the lower court’s decision and handed a victory to the oil giant—and the EPA.

The doctrine established by the case was also seen as a good tool for corporate life. Industries rely on consistent federal guidelines to build their business models. Taking the specifics of regulations out of the courts and putting them into the hands of agencies provided stability for companies that needed to plan ahead.

“As the deference doctrine became known law, everybody just came to rely on it,” Blanchard said. “They may not like an agency’s decision on something, but they were able to rely on the fact, like, OK, at least we can trust the process.”

Subsequent administrations passed much stronger environmental regulations using the Chevron doctrine as a basis. The EPA, especially under Democratic presidents, increasingly came to be seen as an onerous, antibusiness body by industrial interests and ultraconservative figureheads alike. Even Antonin Scalia, who for most of his career was a champion of Chevron, showed signs of tiring of the doctrine in his later years.

In 1989 climate scientist James Hansen sounded the alarm about climate change in front of Congress. In the years that immediately followed, climate science was accepted by both Democratic and Republican politicians, and George H. W. Bush expressed support for climate change policies. The fossil fuel industry panicked and began organizing to combat what it saw as an oncoming wave of regulation. In the decades since, the industry and its allies have invested in politicians, scientists, and cultural figures to publicly sow doubt about climate science, transforming what should have been a straightforward policy problem into a cultural and political war that is still playing out today. Charles and David Koch, who had built up a massive chemical, industrial, and fossil fuel empire, were some of the most important funders of this campaign, almost single-handedly ensuring that climate action stalled for decades in the US. (It’s no accident that it took until 2022 for the country to pass any sort of climate change legislation.)

Those interested in casting doubt on science and clearing out the administrative bedrocks of environmental law had a valuable ally in Leonard Leo, the head of the Federalist Society and one of the most influential figures in stacking the Supreme Court with ultraconservative judges. Although much of Leo’s massive funding to remake the courts comes from dark money, the Kochs have played a public and private role in supporting his efforts. In 2016 Leo coordinated a $10 million donation from the Kochs to George Mason University’s Antonin Scalia Law School, for which Justices Gorsuch, Clarence Thomas, and Brett Kavanaugh have all served as faculty; Thomas’ long-standing appearances at Koch donor events was also facilitated by Leo, as ProPublica reported last year.

“This whole thing has been funded by the Koch brothers,” Blanchard said.

The Koch-funded, Leo-facilitated assault on the administrative state hasn’t been isolated to Chevron. On Monday, the court ruled along familiar 6–3 party lines in Corner Post Inc. v. Board of Governors of the Federal Reserve System, in a decision that creates new opportunities for companies to attack federal regulations years after they’re put in place.

“After today, even the most well-settled agency regulations can be placed on the chopping block,” Justice Ketanji Brown Jackson wrote in her dissent. “Any established government regulation about any issue—say, workplace safety, toxic waste, or consumer protection—can now be attacked by any new regulated entity within six years of the entity’s formation.”

A day before the Loper Bright decision last week, the court ruled, again 6–3, in a decision against the Securities and Exchange Commission that could potentially force federal agencies to hold jury trials as a regular part of enforcement. Last year, the EPA issued more than 950 compliance orders, fining a wide variety of companies, industrial plants, and other entities for not being in line with federal standards. Pat Parenteau, an emeritus professor at Vermont Law School who served as regional counsel in the EPA’s New England office, said that administrative orders are the agency’s “bread and butter.”

“If you have to go to the DOJ to file a lawsuit [for the 900-plus administrative orders], the enforcement program is going to collapse,” he said.

The elimination of Chevron and other guardrails for administrative law doesn’t mean that all environmental rules will disappear tomorrow. The Supreme Court hasn’t used Chevron in a decision in years. Last year, in Sackett v. EPA, the majority justices sidestepped the doctrine altogether in their decision, which effectively wiped out federal protections for as many as half the nation’s wetlands—a preview of the type of decisions that can now be made without Chevron in play.

Lower courts have still consistently relied on Chevron and made decisions using the doctrine that, one analysis found, overwhelmingly favored federal agencies. Now, facing incapacitated enforcement mechanisms and a wide-open field to challenge federal regulations, with a host of conservative judges across the country ready to hear lawsuits, deep-pocketed polluters have little in the way of taking swings at the remaining laws holding them back.

There are a dizzying amount of opportunities ahead of them—and untold effects on the American public when environmental protections are dismantled. Agencies could begin to act more cautiously for fear of lawsuits, a trend that, as Blanchard’s organization points out, could have devastating effects during a crisis like the current avian flu epidemic, when entities like the Department of Agriculture and Centers for Disease Control and Prevention need to work together. The Supreme Court has already agreed to hear a case next year reconsidering denied approvals for a crude oil railway, and its decision could do away with how the government calculates potential fossil fuel emissions associated with infrastructure projects.

“We have by no means seen the end of the assault on the administrative state—which is environmental law,” said Parenteau. “Environmental law is the administrative state.”

Parenteau said that although the Clean Air and Clean Water acts are likely to be the first targets of proponents of Chevron’s demise, conservative towns and cities could eventually decide to take new federal regulations intended to protect the public from “forever chemicals,” or PFAS, to court. “The costs of monitoring and testing for those PFAS chemicals in the parts per trillion is going to be exorbitant,” he said. “My guess is there’s going to be a real pushback as these rules start to take effect.”

For Leo’s part, he has already signaled where he intends to turn next. In recent months, his network has launched public and private campaigns to persuade the Supreme Court to take up a case involving the city and county of Honolulu’s suit against a handful of fossil fuel companies, one of dozens of such climate suits being launched across the country. If the conservative court decides to hear the case, it’s likely to deal a blow to one of the newest strategies to hold Big Oil accountable—and one of the last remaining lines of defense for a nation that’s rapidly losing its ability to make polluters pay to clean up their messes.

[beardedmrbean]

The Supreme Court will consider overturning a high stakes case that could elevate businesses to an equal playing field as their regulatory agencies, but one justice won't be present for the decision.

On Monday, the Court agreed to reconsider its ruling in Chevron v. Natural Resources Defense Council. The ruling in Chevron defers to a federal agency's interpretation of an ambiguous statute given that the interpretation is reasonable. The topic is again appearing before the Supreme Court after Loper Bright Enterprises, a New England fishing company, sued National Marine Fisheries Service, its regulating agency, after the agency decided that the fishing company must pay for a monitor staffed onboard to ensure the fishing company follows federal regulations.

Loper Bright Enterprises sued last year, saying that there was no statute that clearly stated the fishing company must pay for the monitor. A Washington, D.C., Circuit Court of Appeals ruled in the National Marine Fisheries Service's favor, citing Chevron, but one judge dissented.

Administrative law has long been contested among conservatives and liberals. In the case of Chevron, conservatives aim to limit the power of federal agencies whereas liberals argue that Chevron is necessary for the administrative state. The conflicting beliefs are expected to come to a head when the Court reconsiders its ruling on Chevron in the fall, with a ruling likely coming in 2024. However, Justice Ketanji Brown Jackson—one of only three liberals on the nine-justice Court and the Court's newest justice—won't be voting in the ruling, a decision that has some people questioning the reason behind her recusal.

Why Did Jackson Recuse Herself?

Jackson recused herself because she was part of the circuit court that first heard the case. She did not rule on the case, as she was appointed to the Supreme Court before the ruling and the judge's dissent last year. Her recusal is prompting questions and concerns from the public, with some speculating that the Court chose this case to reconsider Chevron knowing that Jackson would recuse herself.

When a justice sits out of a decision, a replacement justice cannot be appointed. Regarding the Chevron ruling, only eight justices will deliberate.

Newsweek reached out to the Supreme Court's public information office by email for comment.

What Happens if Chevron Is Overturned?

Under the Chevron deference, if an agency's interpretation of a statute is considered reasonable, the decision lies in the agency's hands. But if overruled, the businesses regulated by agencies would be elevated to the agency's equal. The businesses would also be more likely to win in court when challenging an agency's ruling.

Criticism And Speculation on the Court Hearing the Case

Some members of the public, specifically on social media, who are critical of the overturn of Chevron said that if overruled, government would cease to exist.

_______________

You promise it will go away

[valence-positive]

"That was just part of the supreme court majority’s rampage this summer. As Nation legal correspondent Elie Mystal wrote a few days before, of the ruling that is devastating for environmental protection and science-based policy: “In the biggest judicial power grab since 1803, the Supreme Court today overruled Chevron v Natural Resources Defense Council, a 1984 case that instructed the judiciary to defer to the president and the president’s experts in executive agencies when determining how best to enforce laws passed by Congress. In so doing, the court gave itself nearly unlimited power over the administrative state and its regulatory agencies. The US Constitution, flawed though it is, has already answered the question of who gets to decide how to enforce our laws. The Constitution says, quite clearly, that Congress passes laws and the president enforces them. The Supreme Court, constitutionally speaking, has no role.” Until now."

“The violent attack on Congress on 6 January 2021, and all the ancillary attempts to steal the 2020 election, were a coup attempt led from the executive branch of the federal government with support from Republicans in the legislative branch. 1 July 2024 – this Thursday – was a more successful coup attempt orchestrated by six judges of the judicial branch. “With fear for our democracy, I dissent,” wrote Justice Sonia Sotomayor in an opinion joined by justices Ketanji Brown Jackson and Elena Kagan, after the US supreme court’s conservative majority ruled that Donald Trump holds “absolute immunity” for “official acts” done while president. Part of what’s shocking about the state of the union right now is that an entire party and the US supreme court’s conservative majority have abandoned almost everything – the truth, the rule of law, their own legitimacy, their place in history and the fate of the nation – to serve one man. They could not have picked a more outrageous man to throw their weight and reputations behind – a psychotic clown who’s also an indicted felon found liable in civil court for sexual assault, barred from doing business in New York, a stealer of state secrets, a would-be thief of an election and the instigator of a violent attack on the legislative branch of government and the constitutionally mandated transition of power after an election. A grifter who in 2016 won a minority victory in a corrupted election – his conviction earlier this year was on charges for one small part of that corruption. A man who has gloated about seizing dictatorial powers and never letting go and a worshiper of tyrants denounced by dozens of his former cabinet members and senior staffers. January 6 was an attack on the constitution and so was 1 July. That no one is above the law has been a pillar of this nation and a cherished value since the 18th century; to knock it down in the 21st destabilizes structures and values that have stood these two centuries and more. A president with total immunity poses obvious threats to the rule of law, the balance of powers and democracy itself, and if that president is the vindictive criminal on the Republican ticket the dangers are immediate and obvious.”

— The US supreme court just completed Trump’s January 6 coup attempt

[shrinkrants]

Nation legal correspondent Elie Mystal wrote . . . of the ruling that is devastating for environmental protection and science-based policy: “In the biggest judicial power grab since 1803, the Supreme Court today overruled Chevron v Natural Resources Defense Council, a 1984 case that instructed the judiciary to defer to the president and the president’s experts in executive agencies when determining how best to enforce laws passed by Congress. In so doing, the court gave itself nearly unlimited power over the administrative state and its regulatory agencies. The US Constitution, flawed though it is, has already answered the question of who gets to decide how to enforce our laws. The Constitution says, quite clearly, that Congress passes laws and the president enforces them. The Supreme Court, constitutionally speaking, has no role.” Until now. -- Rebecca Solnit

[nationallawreview]

Nine Questions, Nine Answers: The Supreme Court’s Decision Overruling ‘Chevron Deference’

On the second-to-last day of its term, the US Supreme Court issued its decisions in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dep’t of Commerce. These decisions overruled Chevron USA. v. National Resource Defense Council, the 40-year-old precedent that established the “Chevron” doctrine, which gave federal agencies a certain amount of deference to interpret statutes they…

[bllsbailey]

Supreme Court Overturns 1984 Chevron V. Natural Resources Defense Council Ruling

The Supreme Court has overturned the 1984 decision in Chevron v. Natural Resources Defense Council, which mandated judicial deference to agencies in cases where the law is unclear.

The National Oceanic and Atmospheric Administration’s (NOAA) federal rule requiring fishermen to pay $700 per day for an “at-sea monitor” is outside the authority that Congress granted the federal agency, according to the majority of the court in a 6-2 decision.

The justices heard the arguments in January in two cases arising from lawsuits filed by Rhode Island and New Jersey fishermen opposing NOAA’s rule, which they claim threatened to destroy their livelihoods. 

The Chevron doctrine, a legal theory developed in the 1980s, states that if a federal regulation is contested, the courts should accept the agency’s reasonable interpretation of whether Congress gave it the right to issue the rule, provided that Congress had not directly addressed the issue. This theory was overruled by the court’s decision.

“Chevron is overruled,” Chief Justice John Roberts wrote for the court’s majority. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation while ensuring that the agency acts within it.”

“But courts need not, and under the APA, they may not defer to an agency interpretation of the law simply because a statute is ambiguous,” he added. “Chevron was a judicial invention that required judges to disregard their statutory duties.”

“And the only way to ‘ensure that the law will not merely change erratically but will develop in a principled and intelligible fashion,’” he said, citing Vasquez v. Hillery, is “for us to leave Chevron behind.” 

Justice Clarence Thomas wrote that Chevron deference “permits the Executive Branch to exercise powers not given to it.”

“Chevron deference was ‘not a harmless transfer of power,'” Thomas wrote. “‘The Constitution carefully imposes structural constraints on all three branches, and the exercise of power free of those accompanying restraints subverts the design of the Constitution’s ratifiers.’ In particular, the Founders envisioned that ‘the courts [would] check the executive by applying the correct interpretation of the law.”

“Chevron was thus a fundamental disruption of our separation of powers. It improperly strips courts of judicial power by simultaneously increasing the power of executive agencies. By overruling Chevron, we restore this aspect of our separation of powers,” he said.

The fishermen claimed that 20% of their revenue is lost due to the required expense of at-sea monitors.

Dissident from the majority, Justices Elena Kagan and Sonia Sotomayor stated that the Chevron “has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions.”

“It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest. Judges are not experts in the field and are not part of either political branch of the government,” Kagan wrote. “Those were the days when we knew what we were not. When we knew that between courts and agencies, Congress would usually think agencies were the better choice to resolve the ambiguities and fill the gaps in regulatory statutes.”

“Because agencies are ‘experts in the field.’ And because they are part of a political branch with a claim to making interstitial policy, And because Congress has charged them, not us, with administering the statutes containing the open questions,” she continued. “At its core, Chevron is about respecting that allocation of responsibility—the conferral of primary authority over regulatory matters to agencies, not courts.”

Jerry Leeman, CEO of the New England Fishermen’s Stewardship Association (NEFSA), praised the Friday decision, stating that “Federal officials usually ignore the well-grounded concerns American fishermen share about overregulation.”

“We are grateful to the Supreme Court for bucking this trend. And we are especially grateful to the fishermen-plaintiffs in Relentless and Loper Bright who have spent years fighting for their brother and sister fishermen everywhere,” he added. 

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[justinspoliticalcorner]

Todd Beeton at The Big Picture:

We’re more than halfway through June, and the Supreme Court has hardly made a dent in the release of major opinions from this blockbuster term.

Each year, the Supreme Court’s term begins on the first Monday in October and ends with a recess starting at the end of June or beginning of July. With this self-imposed deadline fast approaching, the Court has just 2 weeks left to release decisions in the remaining 23 cases out of the 61 total cases they heard this term.

We should expect a firehose of decisions coming this week and next, with the most newsworthy cases of the term among them. And perhaps that’s by design from a court with a distinct PR problem.

[...]

January 6th

By far the most eagerly anticipated Supreme Court decision of the term is the one the Justices heard last: Trump v U.S., which is described by ScotusBlog as:

Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

This case relates to Donald Trump’s appeal of a February 6 decision by the U.S. Court of Appeals for the D.C. Circuit, which thoroughly rejected Donald Trump’s claims to immunity in the four-count criminal indictment brought against him by Special Counsel Jack Smith in the January 6 case.

[...]

Abortion

In its unanimous decision last week to reject the challenge by a group of doctors to the FDA’s approval of Mifepristone, a safe and effective drug used in most medical abortions in the U.S., the Supreme Court did not rule on the merits of the case but rather threw out the challenge based on the plaintiffs’ lack of standing (finding that the plaintiffs in the case were unable to demonstrate any harm brought to them by the FDA’s Mifepristone approval.) 

Justice Kavanaugh’s majority opinion in FDA v. Alliance For Hippocratic Medicine was widely seen as leaving the door open to overturning the FDA’s approval of the drug if the right case—i.e., the right group of plaintiffs—were brought in front of this virulently anti-choice SCOTUS majority.

But the case was not the only abortion case the Court heard this term, with Moyle v. U.S. still yet to be decided.

At issue there is whether Idaho’s near total abortion ban can override the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute on the books since 1986 designed to “ensure public access to emergency services regardless of ability to pay.” 

[...]

Guns

Last week, in a remarkably radical decision, the Supreme Court ruled 6-3 along ideological lines to overturn a Trump era ban on bump stocks, devices that gun safety advocates argue convert semi-automatic weapons into machine guns. 

[...]

There is, however, one Second Amendment case still to be decided this term: U.S. v. Rahimi, which SCOTUSblog describes as a dispute over

Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.

[...]

The Administrative State

As we saw with the bump stock case, this Supreme Court is fond of imposing its own will over the expertise of federal agencies, what Trump and the right derisively refer to as the “deep state” or the “administrative state.” Now the Court may be poised to hugely undercut the power of all federal agencies to interpret congressional statutes when it finally rules on Relentless v. Department of Commerce in the coming weeks.  In a 1984 case, Chevron v. Natural Resources Defense Council, the Court established the Chevron Doctrine, which basically said that “courts should defer to an agency’s reasonable interpretation of an ambiguous statute.”

[...] And in Securities And Exchange Commission v. Jarkesy, it could very well “strip the SEC of a major tool in fighting securities fraud.”

With 23 cases left to have opinions released in the Supreme Court later this month and possibly early next month, Todd Beeton writes in The Big Picture a summary of the key cases left to be decided.

Key cases left:

Trump v. United States: Presidential immunity

Moyle v. United States: EMTALA and abortion.

United States v. Rahimi: Guns and domestic abuse.

Relentless Inc. v. Department of Commerce: Chevron Doctrine and regulatory power.

SEC v. Jarkesy: regulatory power.

[cultml]

Siding 6-3 with the fishermen, the Supreme Court reversed its 1984 landmark case, Chevron v. Natural Resources Defense Council, which lower courts relied on to uphold NOAA’s rule forcing companies to doll out $700 per day — around 20% of their revenue — to pay the salaries of federally mandated on-board observers. The principle of Chevron deference, rooted in the landmark case, instructed courts to defer to reasonable agency interpretations of statutes when the language is ambiguous. “Chevron is overruled,” Chief Justice John Roberts wrote in the majority ruling. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires.”

[deepnerdbearllama]

ABOUT TIME!!

[truck-fump]

Corporations Have Been Salivating Over This SCOTUS Decision The...

New Post has been published on https://robertreich.org/post/739785422183481344

Corporations Have Been Salivating Over This SCOTUS Decision The...

Corporations Have Been Salivating Over This SCOTUS Decision 

The Supreme Court seems to have no problem regulating women’s bodies. But when it comes to regulating big business, they may be ready to end 40 years of established law. Let me explain.

The Court is hearing a pair of cases that could upend federal regulations designed to protect us. At risk is the Biden Administration’s entire climate agenda, the power of the government to approve and regulate drugs, and even the safety and quality of the food we eat, the water we drink, and the air we breathe.

And big corporations are salivating for a ruling that goes their way.

So what’s putting all of this at risk? It’s a challenge to something known as the “Chevron” Doctrine, a legal precedent established by the Supreme Court’s ruling in the 1984 case Chevron v. Natural Resources Defense Council. That case held that whenever any regulation in a law is unclear, it should be the federal agencies, not the courts, that interpret and implement it. This makes sense because unlike courts, federal agencies are staffed with scientists, researchers, and engineers — actual experts in the fields they’re regulating.

But now, a pair of Supreme Court cases challenging the doctrine could shift this power to the courts, stripping federal agencies of this key role of interpreting and implementing our nation’s laws.

If non-expert courts become the sole interpreters of the nation’s laws, a single activist judge, carefully selected by plaintiffs, could invalidate all the regulations of a federal agency charged with protecting the public.

No wonder the big banks, fossil fuel companies, and pharmaceutical giants, who hate the power of federal agencies to limit their profits, have been trying for years to end the Chevron Doctrine. And this time, they think they have the votes on the Supreme Court to do it.

If agencies are stripped of their power to regulate, the big losers will be the American public. We need real experts tackling today’s complicated problems, not judges who think they know better.

We also need to see the potential fall of the Chevron Doctrine for what it is: a power grab by corporate interests, allowing them to shop for judges who will strip agencies of their power to protect the public.

[lazyscience]

This is also why the Supreme Court is important - right now, this is the kind of action a federal agency can take as part of its expertise. If the current case before the Supreme Court, Chevron V. National Resource Defense Council, overturns the currrent policy, the ability of federal agencies to institute this kind of change will be sharply curtailed. All Republicans would have to do is bring a nuisance suit to a federal court with jurisdiction and it could take literal years to decide whether the agency can be allowed to do that without Congress passing a law that says they can.

As climate shocks worsen, U.S. disaster agency tries a new approach to aid.

Another win for the Biden administration. They just made a lot of great changes to how people can get aid after disasters. It includes immediate payments, better protections for renters, and removing some weird hoops people used to have to jump through. It also has new stuff to help self-employed people replace lost equipment.

A great step forward in fixing some of our janky disaster aid system.