#Relentless Inc. v. Department of Commerce

[nationallawreview]

Supreme Court Issues Landmark Decision Upending Deference to Federal Agencies

On June 28, 2024, the Supreme Court of the United States upended the 40-year-old doctrine whereby federal courts gave deference to administrative agencies’ reasonable interpretations of federal statutes. The ruling stands to have significant implications for federal agencies’ rulemaking and enforcement of federal labor and employment laws. Quick Hits The Supreme Court held that courts must…

[mariacallous]

Last summer, when the Supreme Court of the United States jolted the legal system by overruling the landmark Chevron decision, John Vecchione, of the New Civil Liberties Alliance, was one of many conservative legal advocates who celebrated the ruling’s downfall in Loper Bright Enterprises v. Raimondo. As the lead lawyer in Relentless Inc. v. Department of Commerce, a companion case to Loper Bright, which upended four decades of administrative law, Vecchione has played a starring role in a number of legal battles aiming to rein in the so-called administrative state—by vesting the judiciary with greater oversight of federal agencies, regulations, and how the government goes about setting rules that touch all corners of American life. In this broader campaign, ending Chevron was worthy of a toast. “We had sparkling wine,” Vecchione told me. (There was no champagne on hand.)

The New Civil Liberties Alliance, or N.C.L.A., was founded during the early days of the first Trump Administration by a group of conservative-leaning legal advocates, to “tame the unlawful power of state and federal agencies.” Many of their cases have targeted the same kind of administrative power that President Trump himself is determined to stamp out—including his all-out assault on independent watchdogs and agencies. Philip Hamburger, a Columbia law professor who founded N.C.L.A. and serves as its C.E.O., told me in an e-mail that the group “defends our civil liberties by confining our government to lawful power, regardless of who’s in the driver seat.”

As part of that mandate, Vecchione and his team have recently directed their legal firepower at Trump, challenging one of the defining and most disruptive policies of his second Presidency: his invocation of emergency powers to impose across-the-board tariffs on imported goods, which the White House has claimed are necessary because “foreign trade and economic practices have created a national emergency.” N.C.L.A. filed suit just one day after what has now become known as “Liberation Day,” which plunged the U.S. into a trade war and wreaked havoc on financial markets around the world.

N.C.L.A.’s lawsuit, the first of its kind, was brought on behalf of Simplified, a small, woman-owned and led company, based in Florida, that relies on Chinese-made materials to sell planners, stationery, and other paper products. Notably, the case doesn’t challenge the latest round of levies imposed on Liberation Day, some of which have since been paused. (A ten-per-cent universal tariff remains in place.) Instead, the federal complaint, filed in the Northern District of Florida, seeks to invalidate a pair of executive orders Trump signed in February and March that placed tariffs on imports from China, Canada, and Mexico—the U.S.’s three largest trading partners—and which are still very much in effect. Yet the case stands to influence legal challenges to the Liberation Day tariffs, too, because the President relied on the same mechanism for both the earlier and more recent tariff announcements, declaring a national emergency under the International Emergency Economic Powers Act, of 1977. The statute, known as the I.E.E.P.A., had never before been used to enact tariffs; indeed, the word “tariff” isn’t mentioned anywhere in the statute’s text. What the law does do is allow the President to “regulate” an assortment of international economic transactions whenever the nation is faced with “an unusual and extraordinary threat.”

But, in this current moment, there’s no such threat. “Whether ‘regulate’ includes the power to impose a tariff, and the scale and scope of what tariffs might be authorized under the statute, are open questions,” the otherwise staid Congressional Research Service noted in its own analysis of Trump’s actions. N.C.L.A. puts Trump’s lack of authority in far more forceful terms. The law “does not allow a president to impose tariffs on the American people,” the organization’s complaint reads. “President Trump’s Executive Orders imposing a China tariff are, therefore, ultra vires”—beyond his authority—“and unconstitutional. This Court should enjoin their implementation and enforcement.”

There are other congressional enactments that do authorize tariffs, which Trump duly invoked during his first term without drawing a major legal challenge. N.C.L.A. points to the Trade Act of 1974, which allows the U.S. Trade Representative to “impose duties or other import restrictions,” or else to “proclaim a tariff-rate quota on the article.” When Trump relied on those and related authorities to levy tariffs on China, on steel and aluminum imports, and on washing machines and solar cells, his first Administration followed an onerous regulatory process, called for by Congress, that took the better part of a year to complete in all three instances. Not so with the China tariffs imposed in February and March, for which Trump turned to the I.E.E.P.A.

To kick that overreach into high gear, on the first day of the new Administration, the freshly inaugurated President declared a national emergency at the southern border, which he insisted was “overrun by cartels, criminal gangs, known terrorists, human traffickers, smugglers, unvetted military-age males from foreign adversaries, and illicit narcotics that harm Americans.” Few things rouse Trump more than the spectre of rampant migrant criminality and drugs hovering over the nation, and so his Administration doubled down on a manufactured sense of emergency, naming both immigration and economics as reasons for dictating trade policy under the I.E.E.P.A.—and making examples of China and our North American neighbors in the process. “President Trump is taking bold action to hold Mexico, Canada, and China accountable to their promises of halting illegal immigration and stopping poisonous fentanyl and other drugs from flowing into our country,” a White House fact sheet released in early February read. This rationale adorned the accompanying executive order targeting China: “Imposing Duties to Address the Synthetic Opioid Supply Chain in the People’s Republic of China.” And, in March, the President increased the tariffs on Chinese goods yet again, citing the absence of “adequate steps to alleviate the illicit drug crisis.” (The current tariff rate, which Trump raised again on Wednesday, in response to China’s retaliatory tariffs on U.S. imports, is a hundred and forty-five per cent.)

Because the tariffs and Trump’s many defenses of them—the need to deal with trade deficits, raising revenue, and other “purely economic” reasons, in Trump’s words—cannot be shown to be “necessary” to address this supposed emergency, as the I.E.E.P.A. requires, N.C.L.A. believes the courts can and should declare them unlawful. After all, this will go to the very Supreme Court that declared, when overruling Chevron, that courts owe no deference to the executive branch when interpreting statutes. “This Court that is so textualist and so originalist is not going to let the President use the statute for something that is just not in the statute,” Vecchione told me.

The long game here may go beyond tariffs. Nested within N.C.L.A.’s statutory argument lies a fairly straightforward constitutional argument, plus two others that are more complex—or that are at least up for debate under current Supreme Court precedent. According to Article I of the Constitution, only Congress has the “Power To lay and collect Taxes, Duties, Imposts and Excises” and “regulate Commerce with foreign Nations.” Because tariffs are, effectively, a tax on U.S. businesses that rely on foreign goods to operate, the argument goes, the President cannot wrest this power from Congress. So far so good.

But what if Congress has delegated this taxation authority to the President, as Trump claims it did in the I.E.E.P.A.? Then, N.C.L.A. contends, such delegation was so sweeping and amorphous as to rob Congress of its own legislative authority—and thus the law itself violates a legal precept known as the nondelegation doctrine. This relic of constitutional law, which the Supreme Court hasn’t taken seriously since its quiet death in the New Deal era, is more mythical than historical—holding, more or less, that Congress cannot delegate its lawmaking power to another branch of government. The last time the Supreme Court deployed the doctrine to strike down a federal enactment was in 1935, when Chief Justice Charles Evans Hughes declared unconstitutional a key part of President Franklin D. Roosevelt’s New Deal agenda. “Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry,” Hughes wrote.

For many years now, N.C.L.A. and others in the conservative legal movement, including a number of Trump-aligned judges, have been trying to make the nondelegation doctrine great again. The closest the current Supreme Court has come to doing so was in Gundy v. United States, a 2019 case in which N.C.L.A. filed an amicus brief urging the Supreme Court to revive it and call it something snappier: divestiture. “Statutes that divest Congress of these legislative powers by conferring them upon executive or agency officials are violating the Constitution itself—not mere judicial ‘doctrine’ or precedents,’ ” Jonathan Mitchell, a lawyer for N.C.L.A. who later rose to prominence as the architect of S.B. 8, a Texas anti-abortion statute, wrote at the time. “Using the term ‘nondelegation doctrine’ both misdescribes and understates the problem with statutes that give lawmaking powers to agency officials, and the widespread use of this nomenclature stacks the deck in favor of administrative power and against the judicial enforcement of Article I’s vesting clause.”

The Supreme Court, in a fractured ruling that couldn’t command a majority of five Justices, didn’t adopt N.C.L.A.’s proposal in Gundy. But the dissenters, led by Justice Neil Gorsuch, alluded to the group’s argument when writing that judges “have an obligation to decide whether Congress has unconstitutionally divested itself of its legislative responsibilities.” In a retort that illustrates the far-reaching consequences of reviving the nondelegation doctrine, Justice Elena Kagan, writing for a four-Justice plurality, mused that if the delegation challenged in Gundy were ruled unconstitutional, “then most of Government is unconstitutional.” In the next few months, the Justices will get a second bite at the apple: in a pending challenge to the Federal Communications Commission’s authority to provide phone-and-internet programs for underserved areas, the Supreme Court will once again tell us if the nondelegation doctrine has any life left in it at all. (In an amicus brief, N.C.L.A. has urged the Justices to question the funding mechanisms of the programs, which for decades has supplied billions to subsidize connectivity in schools, libraries, hospitals in rural areas, and low-income communities. “The ‘nondelegation’ doctrine is failing,” the group lamented.)

Another thing Gorsuch did in Gundy, presaging yet another argument N.C.L.A. advances in its tariff lawsuit, is to play up the so-called major-questions doctrine. This newer doctrine took on a life of its own during the Biden Administration, when the Supreme Court struck down a number of federal policies it deemed of vast “economic and political significance”—including the Center for Disease Control and Prevention’s pandemic-era eviction moratorium, the Environmental Protection Agency’s ability to regulate certain greenhouse-gas emissions under the Clean Air Act, and the President’s student-debt cancellation program. In this latter case, Chief Justice John Roberts, otherwise an ardent defender of executive power, mounted a forceful defense of the newfangled major-questions doctrine—which Kagan, in dissent, had accused the Court of making up out of whole cloth to strike down policies a majority of Justices didn’t like. Roberts conceded that “the major questions ‘label’ may be relatively recent,” but insisted that the doctrine is rooted in “ ‘an identifiable body of law that has developed over a series of significant cases’ spanning decades.”

Of course, which policies constitute major questions of “economic and political significance” is in the eye of the beholder, fuelling the belief that only Democratic Presidents are subject to this test. Will the current Supreme Court conclude that Trump’s tariffs also flunk it? N.C.L.A. certainly thinks so. And now that its suit is the first out of the gate, others within the group’s orbit of conservative legal activists, pro-business organizations, and allied academics appear to be gearing up for their own legal challenges. “I believe this has broken the ice,” Vecchione told me.

Following N.C.L.A.’s action, the Retail Industry Leaders Association, which represents businesses such as Best Buy, Target, and Home Depot, boosted the lawsuit through its affiliate, the Retail Litigation Center. “Before lasting damage is done to the economy and family budgets, leading retailers support timely judicial review of this abuse of authority from the White House,” the center said, in a statement. Politico, which reported on that statement, noted that multiple lawyers and associates for business groups were considering additional legal challenges to the latest round of tariffs. “All options are being considered,” one unnamed trade-association executive told the outlet. And a “prominent legal figure close to Trump” told ABC News this week that there’s “a very good chance” that the Supreme Court won’t stomach Trump’s tariffs.

On Trump’s Liberation Day, Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, published a blog post looking for suitable plaintiffs to bring a court challenge on behalf of the Liberty Justice Center, a litigation shop focussed on economic-liberty issues. (The late Scalia, I should note here, is credited with one of the better-known quips foreshadowing the major-questions doctrine: Congress, he once wrote, does not “hide elephants in mouseholes.”) Before Trump’s election, Somin had been sounding the alarm about the illegality of imposing tariffs without Congress, but the way to get this issue into court is to find plaintiffs who are harmed by the tariffs and thus have legal standing to sue. “We want to get firms that directly import from abroad,” Somin told me. As his recruitment post notes, small businesses may well be disproportionately harmed by the tariffs and thus are the perfect plaintiffs.

What strikes Vecchione about this growing legal consensus is that the business giants who stand to lose the most under a trade war have yet to put up a fight. Are they really more keen on maintaining their access to the White House, a desire that some of them made plain on Inauguration Day, than they are on protecting their bottom line? “Where is Amazon?” Vecchione asked. “Where is Walmart? Where are they? Where the heck are they?” Somin told me, “If an Apple or a Walmart wants to file a case, they may not need our help. They obviously have immense resources of their own.” Even with Trump backing down from some of the levies announced on Liberation Day, he noted, in an e-mail on Wednesday night, the importance of challenging the President’s “unconstitutional usurpation of power” remains the same. Besides, these tariffs haven’t been cancelled; they’ve just been paused. “Trump’s vacillations continue to create dangerous uncertainty,” Somin wrote.

[meret118]

Reproductive health and gender equality advocates are just beginning to digest the sweeping implications of the ruling in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, in which the court’s conservative supermajority overturned a 40-year-old cornerstone of US administrative law known as “Chevron deference.” In doing so, the justices vastly limited the power of federal agencies to issue regulations on everything from financial markets to industrial pollution to drug pricing to workplace safety. 

. . .

And abortion. And birth control. And trans equality. And pregnant workers’ rights. “It’s hard to overstate the significance of the Loper Bright and Relentless decision” on reproductive and gender issues and federal policy more broadly, says Shaina Goodman, director for reproductive health and rights at the National Partnership for Women and Families. “It has deep and far-reaching consequences that we will see play out over the coming years.” That’s because many of the major regulations protecting or expanding reproductive and gender rights have been the result of federal agencies interpreting statutes enacted by Congress.

. . .

Certainly, anti-abortion groups were pleased at their new power to disrupt how federal laws are made and implemented. Eric Rassbach, vice president and senior counsel at the Becket Fund for Religious Liberty, a leading law firm focusing on religious issues, called Loper Bright “a landmark ruling” for groups that oppose abortion and birth control, such as nuns who’ve been fighting the Affordable Care Act’s contraceptive mandate for a decade. He predicted that the decision “would likely be the death knell” for, among other things, new Biden administration rules interpreting the Pregnant Workers Fairness Act to include workplace accommodations for people having abortions.

. . .

In Corner Post v. Board of Governors of the Federal Reserve System, a case involving a North Dakota truck stop and debit-card swipe fees, the court granted litigants virtually unlimited time to file suit over federal rules they claim cause them harm, instead of the six-year statute of limitations that had been in place.

If the implications for reproductive rights weren’t immediately obvious, Justice Ketanji Brown Jackson made the stakes clear in a blistering dissent. She pointed to efforts by anti-abortion doctors to overturn the Food and Drug Administration’s regulation of mifepristone—a case the justices rejected in June on the narrow grounds that the doctors didn’t have standing to sue. Now, Jackson suggested, the FDA’s approval of mifepristone in 2000 would be “fair game.” “From this day forward,” she wrote, “administrative agencies can be sued in perpetuity over every final decision they make…Even the most well-settled agency regulations can be placed on the chopping block.” 

[sarkos]

Just two paragraphs long, Thomas’s opinion in Cuozzo Speed Techs v Lee set out his opposition to the Chevron doctrine, a legal precedent tangentially related to the case that had stood as settled law for decades. Chevron was a critical prop for federal agencies as they worked to protect the American people from pollution, workplace injuries and other public harms. Thomas didn’t like the way Chevron granted federal experts leeway to reasonably interpret ambiguous laws – he claimed that was a legal “fiction” – and so in his concurring opinion he invited any interested party to challenge the precedent. “In an appropriate case,” he said, “this court should reconsider that fiction of Chevron and its progeny.” A few months later, a group calling itself the New Civil Liberties Alliance (NCLA) was created with the express purpose of litigating cases before the courts, its top priority being to attack federal regulations and the “administrative state”. NCLA claimed to be non-partisan, but it was founded by former employees of – with $5m seed money from – Charles Koch, the billionaire tycoon who has been a catalyst of ultra-right causes for a generation. In March 2020 NCLA filed a complaint in federal district court that answered Thomas’s call. Relentless Inc v Department of Commerce, twinned with a second case Loper Bright Enterprises v Raimondo, did just as the justice wanted – they challenged the Chevron doctrine as a supposed legal fiction. As Thomas had intended, the twin cases then wound their way up the judicial ladder to the supreme court, and on to his desk. Two weeks ago Thomas joined the other five rightwing justices who now control the supreme court in striking down the Chevron doctrine. Eight years almost to the day after he issued his concurring opinion, the cycle was now complete: his invitation to litigants had spawned a new organisation, backed by Koch, that custom-created a legal challenge designed to reach the supreme court, allowing Thomas and his hard-right peers to gut a cornerstone of modern federal government that had been the law of the land for 40 years.

How Clarence Thomas has provided a list of legal targets to ultra-right groups | Clarence Thomas | The Guardian

[virginiaprelawland]

The Implications of Overturning Chevron Deference: A Paradigm Shift in Administrative Law

By  Tommaso (Tommy) Ceccuzzi, Marymount University Class of 2023

July 5, 2024

In a landmark decision, the Supreme Court has overturned Chevron deference, a doctrine that has shaped administrative law since 1984. This blog explores the Court's reasoning, the immediate and long-term impacts of this decision, and the implications for various sectors, including healthcare and regulatory law.

Background on Chevron Deference:

Chevron deference emerged from the Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. It mandated that courts defer to a federal agency's interpretation of ambiguous laws it administers, provided the interpretation is reasonable. This two-step process significantly influenced the balance of power between agencies and the judiciary.

The Supreme Court Decision:

In Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the Supreme Court reviewed whether Chevron deference should be overruled. These cases, decided jointly, involved federal regulations affecting the fishing industry, but their implications extend to all regulations interpreting ambiguous federal laws, including those in healthcare.

In a 6-3 decision, with Chief Justice Roberts writing for the majority, the Court concluded that Chevron deference should never have been used, overturning the precedent. The Court made several key points:

1. Independent Judicial Judgment: Courts must use independent judgment to determine the meaning of federal statutes and cannot defer to agency regulation simply because the statute is unclear. The majority opinion states that Chevron deference runs counter to the Administrative Procedure Act (APA), which mandates that “courts decide legal questions by applying their own judgement.”

2. Agency Expertise: The Court asserted that agencies lack special competence in resolving statutory ambiguities. While courts can respect agency expertise on technical issues, Congress expects courts to handle ambiguous statutory questions.

3. Stare Decisis: Although federal courts generally follow prior Supreme Court decisions (stare decisis), the majority opinion deemed the 1984 Chevron decision “flawed and unworkable.” The Court argued there is no reason to wait for Congress to correct this mistake.

4. Impact on Prior Cases: The opinion notes that prior cases relying on Chevron to uphold agency actions are still subject to “statutory stare decisis” and can be upheld even though the deference standard has changed.

The Dissent:

Justice Kagan, joined by Justices Sotomayor and Jackson, authored a 33-page dissent, strongly opposing the majority's decision. Key points from the dissent include:

1. APA Interpretation: Kagan argued that the APA does not specify how courts should review agency regulations, with or without deference. The dissent criticizes the majority for disrupting Chevron, which Kagan describes as the “cornerstone of administrative law.”

2. Stare Decisis Principle: The dissent rebukes the majority for subverting the principle of stare decisis without significant justification beyond disagreement with Chevron.

3. Future Implications: Kagan predicts that existing federal regulations, previously unchallenged under Chevron, will now face new challenges. She emphasizes that the decision grants the Court exclusive power over regulatory law issues, turning it into the “country’s administrative czar.”

Immediate Legal Impacts:

The Supreme Court's decision to overturn Chevron deference has far-reaching and immediate legal impacts. These effects are particularly pronounced in the areas of judicial review, agency authority, and the outcomes of pending cases.

Judicial Review:

One of the most immediate impacts of overturning Chevron deference is the change in how courts review agency interpretations of ambiguous statutes. Previously, under Chevron, courts would defer to an agency's reasonable interpretation of an ambiguous statute. This two-step process often meant that as long as the agency's interpretation was not arbitrary or capricious, it would be upheld.

With Chevron deference no longer in place, courts are now required to engage in independent judicial analysis of statutes. This means judges must interpret the law without giving substantially less weight to the agency's interpretation. The shift necessitates that judges delve deeper into the legislative history, statutory text, and context to determine the statute's meaning. This change could lead to diversity in judicial decisions, as courts will no longer defer to agency interpretations. However, it could also increase the complexity and length of litigation as courts take on a more active role in statutory interpretation.

Agency Authority:

Federal agencies have historically relied on Chevron deference to interpret and implement ambiguous statutes with a degree of autonomy. The ability to define ambiguous terms allowed agencies to adapt regulations to changing circumstances and specialized knowledge.

The removal of Chevron deference reduces the discretion and authority agencies have traditionally exercised. Agencies must now anticipate greater judicial scrutiny of their interpretations and may be more conservative in their rulemaking to avoid potential legal challenges. This could result in agencies issuing more detailed and less flexible regulations to ensure their interpretations are upheld in court. Additionally, agencies might experience an increased administrative burden as they justify their interpretations more thoroughly, anticipating that courts will no longer give them the benefit of the doubt.

Pending Cases:

The overturning of Chevron deference will have an immediate impact on pending cases that involve agency interpretations of ambiguous laws. Cases that were previously likely to be resolved in favor of agency interpretations may now see different outcomes as courts apply independent analysis.

For example, regulatory disputes in sectors like healthcare, environmental law, and financial regulation could be revisited under this new standard. Agencies defending their interpretations will now need to present more robust arguments to convince courts of their statutory readings. This shift could lead to reversals of agency decisions, modifications of existing regulations, and potential delays as courts take longer to arrive at decisions without the guiding framework of Chevron deference.

Moreover, litigants challenging agency actions might be emboldened by the Court's decision, leading to an increase in legal challenges against agency interpretations. This could create a more litigious environment where businesses, advocacy groups, and individuals are more likely to contest agency regulations in court.

Long-Term Implications:

- Administrative Law: This decision reshapes administrative law principles, potentially leading to increased judicial involvement in regulatory interpretations.

- Regulatory Environment: Agencies might approach rulemaking and enforcement with greater caution, anticipating stricter judicial scrutiny.

- Separation of Powers: The decision underscores a shift in the balance of power among the legislative, executive, and judicial branches.

Potential Challenges and Criticisms:

The Supreme Court's decision to overturn Chevron deference has raised several challenges and criticisms, highlighting potential issues in judicial and regulatory practices.

Practical Challenges:

1. Technical Expertise: Courts may struggle to interpret complex, technical statutes without agency guidance. Agencies like the EPA and FDA have specialized knowledge that judges typically lack.

2. Increased Workload: Judges will need to conduct more thorough analyses, increasing the judicial workload and potentially leading to longer case resolution times.

3. Consistency and Predictability: The absence of Chevron deference may result in less predictable and consistent court rulings, complicating compliance and strategic planning for regulated entities.

Criticisms:

1. Judicial Activism: Critics argue that the decision reflects judicial activism, as the Court is seen as overstepping by overturning established precedent without a compelling reason beyond disagreement.

2. Expertise Gap: There is concern about the expertise gap between judges and specialized agencies. Agencies possess the necessary background to interpret complex regulatory schemes effectively, a capability that generalist judges may lack.

Expert Opinions:

- Legal Scholars: Some legal scholars view the decision as a necessary correction, while others see it as destabilizing established administrative law principles.

- Industry Perspectives: Stakeholders in regulated industries, such as healthcare, express concerns about increased uncertainty and potential disruptions.

Conclusion:

The Supreme Court's decision to overturn Chevron deference marks a significant shift in administrative law. While it aims to restore judicial independence in statutory interpretation, it also raises concerns about increased judicial workload and potential instability in regulatory practices. As the legal community and regulated industries adjust to this new landscape, the long-term impacts will continue to unfold.

______________________________________________________________

- Legal Precedents: Chevron U.S.A., Inc. v. NRDC, Loper Bright Enterprises v. Raimondo, Relentless, Inc. v. Department of Commerce.

- Academic Articles: Various legal commentaries and scholarly articles on Chevron deference and administrative law.

- Official Opinions: Links to the majority and dissenting opinions from the Supreme Court decision.

[mongowheelie]

I found this on NewsBreak: The cynicism of the Supreme Court: Helping Trump kill the American experiment

I found this on NewsBreak: The cynicism of the Supreme Court: Helping Trump kill the American experiment

[justinspoliticalcorner]

Chris Geidner at Law Dork:

In nearly four hours of arguments on Wednesday, the justices of the U.S. Supreme Court debated who should be deciding how are laws in our country are implemented. By the end of the arguments, the six-justice conservative majority appeared ready — some of the justices, eager — to jettison a 40-year old ruling that has courts defer to executive branch agencies’ interpretations of ambiguous laws when an agency’s interpretation is reasonable. Instead, the argument goes, the courts should not need to defer to agencies and their expertise. It is an unworkable power grab that would upend federal administrative law — pushing power to the courts now that conservatives and business interests believe they are most likely to regularly find support from that branch. The practical problem with this argument was most cleanly laid out by Justice Elena Kagan, who asked Roman Martinez, the Latham & Watkins partner arguing for one of the challengers, about when there’s a question about whether a new product supporting “healthy cholesterol levels” is a dietary supplement or a drug. “You want the courts to decide that?“ The lawyers for the challengers to the rule — Chevron deference, named after the 1984 case that laid out the rule — kept insisting that their problem was that the rule has resulted in the executive branch taking over the “interpretive” function, as Martinez said a half-dozen times. It was one of the most disingenuous arguments I’ve seen at the Supreme Court. It’s nothing more than a rhetorical trick. You could just as easily refer to the actions in question as executive functions — a point that Justice Ketanji Brown Jackson made repeatedly in the first argument. (She recused herself from the second argument.) “What I'm stuck on is what seems to be an assumption in your argument that every question posed with respect to interpreting a statute is a legal one,” Jackson told Martinez. “I see Chevron as doing the very important work of helping courts stay away from policymaking …. [H]elp me understand why, if we do away with Chevron's framework, we won't have a problem of courts actually making a policy decision.”

In oral arguments for a pair of cases (Relentless, Inc v. Department of Commerce and Loper Bright Enterprises v. Raimondo) at SCOTUS yesterday, the radical right-wing majority on the court appears ready to eviscerate the Chevron doctrine by making impossible any agency to have regulatory power.

See Also:

Slate: The Supreme Court Is About to Seize Way More Power From Democratic Presidents

HuffPost: Supreme Court's Conservatives Poised To Take Down Decades-Old Precedent

Balls and Strikes: Why Right-Wing Activists Have Strong Opinions About the Supreme Court’s Big Fishing Regulations Case