The Supreme Court Could Foster a New Kind of Civil War
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Author: David Bernstein
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The Supreme Court’s expected overturning of Roe v. Wade has captured all the news attention, but the Court could well lay the groundwork for even larger changes in American governance before it adjourns for the term — and trigger a state-by-state battle for the new shape of laws and American civic life.

If Roe v. Wade is overturned, activists on both sides are already girding for full-force political battles over state abortion access, possibly followed by similar struggles over contraception, and even same-sex marriage.

Beyond its decision on abortion, however, the Court is expected to rule in no fewer than three cases this month that could open up many more fronts for this state-by-state conflict, by severely limiting federal agencies’ authority to promulgate regulations.

They all sound dry, but their implications could be sweeping. The first two cases involve Medicare payments: Becerra v. Empire Health Foundation and American Hospital Association v. Becerra. The third case is about the Clean Air Act: West Virginia v. Environmental Protection Agency.

On the surface, they address typical Supreme Court arcana. One of the Medicare cases involves parsing a paragraph of Medicare law that Justice Stephen Breyer, in oral argument last November, admitted he had to read “two or three times” to understand. The West Virginia case asks whether paragraph 7411(d) of the Clean Air Act applies only to actions that power plants control at their facilities, or beyond those physical boundaries.

But there’s a reason these cases are being left to the end of the term — typically when the Court drops its most newsworthy decisions. They all have a bearing on one of the basic responsibilities of the government in Washington: How much latitude federal agencies have to interpret, and then enforce, the laws that Congress passes.

Whenever the Supreme Court undercuts an issue at the national level, as it did by weakening voting rights law in 2013, the warfare shifts to the states. If the Court significantly rolls this federal authority back — and there are signals it will — the implications could start to shift the entire locus of American power, and the country will be dealing with the fallout for years.

A great deal of Washington’s power rests on a fact you don’t learn in civics textbooks: When Congress passes new laws, those laws are filled with instructions that can be vague, or debatable, or even self-contradictory. Laws need to be reapplied to new circumstances over time.

Who gets to do that? For decades, courts have generally allowed federal agencies to make those calls — a policy made explicit in the 1984 Chevron v. National Resources Defense Council decision. That case also involved the Clean Air Act, with the ambiguous phrase at issue being “stationary sources” of air pollution. The Democratic administration of Jimmy Carter had interpreted that expansively; when Ronald Reagan’s administration later redefined the term more narrowly, environmental advocates asked the courts to not let them.

Under the reasoning laid out in the Chevron decision, courts should generally defer to federal agencies — in that instance, Reagan’s Environmental Protection Agency — when determining if a regulation is warranted under that agency’s statutory authority. Unless the answer is clearly no, courts should assume that the agency knows its business better than what conservatives used to call “unelected activist judges.” Since then, this principle has become known as the Chevron standard, or “Chevron deference.”

Increasingly, however, SCOTUS and lower courts have been taking a different view — as Trump-appointed judge Kathryn Kimball Mizelle did when she overturned the Centers for Disease Control and Prevention’s travel mask mandate last month. They, and a chorus of conservative advocates, say that judges should decide, not defer. So Mizelle, for example, decided that mask mandates do not “prevent the introduction, transmission, or spread of communicable diseases,” as the surgeon general is authorized to do under the 1944 Public Health Service Act.

Commentators on both left and right have, at various times, found fault with the Chevron standard — often depending on whether it’s a Democratic or Republican administration putting out the regulations. (Or, whether federal courts are filled with Democratic- or Republican-appointed judges.) The original Chevron case had liberals demanding judicial precedence over Reagan’s agencies. Conservative Justice Antonin Scalia was a prominent advocate of Chevron deference.

But in recent years, conservatives have made the demise of Chevron deference a priority, as a way of limiting what they see as the runaway growth of the regulatory state.

Justices Neil Gorsuch, Clarence Thomas, Brett Kavanaugh and Samuel Alito have all expressed opposition to Chevron in various ways, and many court observers believe that the conservative majority will soon overturn, or at least redefine, that precedent.

Medicare reimbursements and a particular EPA rule are just the tip of a mountainous quantity of federal regulations, old and new, that could be challenged if, as many expect, the Court uses those cases to announce the death of Chevron deference.

If the rulings in these three cases definitively go their way, there’s good reason to believe that businesses and conservative activist organizations will see it as a door flung wide open — an opportunity to chase their particular regulatory bugbears, seeking out right-wing judges on district courts, trying to chip away at the scope of federal agencies’ work.

Craig Green, professor of law at Temple University’s Beasley School of Law, expects that their potential targets could include a whole host of legal protections: on workers rights, consumer protections, environment, health care and much more. Some of those challenges are in courts already; others are just waiting for a green light in the form of a Supreme Court change to Chevron.

This isn’t just an obscure point of administrative law: A study last year found that 99 percent of major federal laws include delegation of rule-making to agencies, leading Amherst College political science professor Austin Sarat to warn recently that reducing those agencies’ ability to interpret statutes is “a frontal assault on the federal government’s ability to promote the health, safety and welfare of citizens.”

Not all of those challenges will be successful. But, Green says, many of those that are will remove federal safety nets, leaving it up to individual states to debate their own way forward. That already happens on greenhouse emissions, gun laws, minimum wage and, of course, Covid mitigation. That could soon extend to almost any activity that, until now, has been handled uniformly by the federal government. Prepare for death of civility by a thousand cuts.

Green puts it bluntly: “Defeating Chevron weakens the federal government.” And as states respond differently, Green says, “it produces a schism among different states.”

Americans have seen these regulatory schisms in force during the pandemic, as different jurisdictions issued different emergency orders, and practices varied across every state line — and governors were protested as either tyrants or deathmongers accordingly.

In fact, the Supreme Court struck down two pandemic-related rules without directly upending Chevron: ruling that OSHA could not implement a “vaccine or test” mandate for large employers; and that the CDC could not extend its eviction moratorium.

Those decisions, both overruling federal agencies, used another avenue to skirt Chevron deference — part of a trend toward “antideference,” argues Nathan Richardson, professor of law at the University of South Carolina School of Law. They relied on “major questions doctrine,” which allows judges to, essentially, scrap agencies’ ability to regulate at all without explicit Congressional instruction when the issue is of great economic or political interest.

Great interest being in the eye of the beholder, this doctrine could allow judges — any federal judges, not just those on the Supreme Court — to bypass Chevron pretty much any time they dislike a regulation.

“Everything from food and drug standards to climate change is getting greater scrutiny from the Court,” Richardson says. “The entire OSHA office is arguably unconstitutional” if you take the doctrine far enough, he says.

On that front, Richardson has his eye particularly on West Virginia v. EPA: In seeking to strike down Affordable Clean Energy standards, West Virginia is explicitly making a major questions doctrine argument. It’s an opportunity for the Court to define just how far to take it.

Much of this looming conflict could be avoided if Congress was capable of passing legislation to better define what it wants agencies to do, and how. Or, passing laws at all.

For example, after the death of 80 people and wounding of hundreds more in the 2017 Las Vegas massacre, Congress could have banned “bump stocks,” which allow for more rapid firing of semi-automatic rifles. It did not. That led to debates in state legislatures from coast to coast, with nearly a dozen states adopting bump-stock bans, but others failing to do so.

Those state-by-state clashes ended when the Trump administration, through the ATF, banned bump stocks through regulation.

Two challenges to that federal bump-stock ban have now been appealed to the Supreme Court, both arguing that the ATF does not have the authority to issue that regulation. If the ban is overturned, the fight will then move right back to state houses nationwide.

Advocates will seek bump-stock bans in the 39 states that still lack them, while gun rights groups will seek repeal of bans now in place. Already, Florida’s ban is being challenged in state court.

The same could happen with the Biden administration’s recently announced “ghost gun” ban. And gun control is just one example of the current state of congressional inaction, which ranges from minimum wage to climate change.

In that atmosphere, it largely falls to agencies to adapt federal regulations to a fast-changing world. And adoption of an “antideference” standard in courts would add a significant choke point hampering federal action — just as the Supreme Court has demonstrated Congress’s inability to settle the abortion or voting rights issues with national laws.

If Roe goes down, and Chevron gets rolled back, let the fighting begin.

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