A New Supreme Court Case Seeks To Make the Nine Justices Even More Powerful

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Author: Ian Millhiser
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The Supreme Court announced on Monday that it will reconsider one of its modern foundational decisions, Chevron v. National Resources Defense Council (1984), which for decades defined the balance of power between the federal judiciary and the executive branch of government.

Chevron established that courts ordinarily should defer to policymaking decisions made by federal agencies, such as the Environmental Protection Agency or the Department of Labor, for two reasons: Agencies typically have far greater expertise in the areas they regulate than judges, and thus are more likely to make wise policy decisions. And, while federal judges are largely immune from democratic accountability, federal agencies typically are run by officials who serve at the pleasure of an elected president — and thus have far more democratic legitimacy to make policy choices.

Nevertheless, next term the Court will hear a case, Loper Bright Enterprises v. Raimondo, which explicitly asks “whether the court should overrule Chevron.” In the reasonably likely event that the Court does overrule this seminal decision, that would mean the death of one of the most cited decisions in the federal judiciary — according to the legal database Lexis Nexis, federal courts have cited Chevron in over 19,000 different judicial opinions.

Indeed, Chevron is arguably as important to the development of federal administrative law as Brown v. Board of Education (1954) was important to the development of the law of racial equality.

And a decision overruling Chevron would also make the United States far less democratic. One of the Supreme Court’s most consequential projects in the last several years, a project that took off after former President Donald Trump remade the Court with three appointees, has been concentrating authority over federal policymaking within the Court itself. This project necessarily shifts power away from the other two branches, whose leaders are elected, and to the unelected members of the federal judiciary.

The Court has already taken a major leap toward overruling Chevron, although it is still technically good law. Many of its recent decisions regarding federal agencies’ power to set policy turned on the so-called “major questions doctrine,” a judicially created doctrine that traces back to a 2000 Supreme Court decision, but that became a central force in the Court’s administrative law decisions during the Biden years. This doctrine effectively permits five justices to veto any action by a federal agency that touches upon a matter that those five justices deem to be a matter of “vast ‘economic and political significance.’”

But, while this major questions doctrine gives the Court a veto power over executive branch policymaking decisions it deems too significant, Chevron has largely prevented lower court judges from micromanaging the sort of routine, and often highly technical, regulatory decisions that the government makes all the time — questions like how much nitrogen may be discharged by a wastewater treatment plant, or how to conduct hearings that determine which coal mine workers are entitled to certain disability benefits.

Without Chevron, every one of these complicated questions could become the subject of protracted litigation, presided over by judges who know little or nothing about nitrogen pollution, black lung disease, or any of the myriad other areas where specialized agencies have considerable expertise.

The Supreme Court’s war on federal regulation, briefly explained

Many federal statutes announce a broad policy goal, then delegate to a federal agency the job of implementing this goal through a network of binding regulations. The Clean Air Act, for example, states that certain power plants must use the “best system of emission reduction,” then delegates to the EPA the authority to determine what this system is given the current state of emissions-reduction technology. Other federal statutes permit agencies to determine, within certain guideposts set by Congress, which vaccines must be covered by health insurers, or which workers are eligible for overtime pay.

For many decades, decisions like Chevron established that courts should largely stay away from these kinds of policymaking decisions by federal agencies, and the idea that courts should defer to expert policymakers within these agencies used to enjoy broad bipartisan supportChevron was a unanimous decision (although several justices were recused from hearing the case).

It is no coincidence that the Court’s right flank united behind deference to federal agencies in the mid-1980s, when President Ronald Reagan was in office and deregulation was ascendant. During the Reagan administration, decisions like Chevron required left-leaning judges to keep their hands off of the Republican Party’s plans to slash regulation. And many of the decision’s most vocal defenders were staunchly conservative judges, including Justice Antonin Scalia, who predicted in a 1989 lecture that “in the long run Chevron will endure and be given its full scope” because it “reflects the reality of government, and thus more adequately serves its needs” than the alternative.

But this conservative consensus in favor of judicial restraint ended about the same time that Barack Obama moved into the White House. For much of the Obama years, the conservative Federalist Society’s annual conference became a showcase for various plans to slash federal agencies’ power and shift authority over regulation to the judiciary.

Recall that Chevron is grounded in two observations about why judges should typically defer to an agency’s policymaking decisions. The first is that “judges are not experts” in the kind of hyper-technical questions that often come before federal agencies. So, if we give too much regulatory authority to judges, we’re going to wind up with a very poorly governed nation.

Meanwhile, Chevron’s second concern is grounded in democracy. “While agencies are not directly accountable to the people,” the Court said in Chevron, agencies answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”

Chevron, in other words, recognized that agencies will sometimes need to make politically controversial decisions, such as how aggressive they should be in fighting climate change, or how the government should encourage people to get vaccinated against Covid-19. And the Court concluded in 1984 that it was best for these decisions to be made by informed and politically accountable officials.

This later aspect of Chevron, the respect for democratically accountable decisions over decisions made by lawyers with lifetime appointments, has largely been abandoned by the Supreme Court’s current, Republican-appointed majority. One of the conservative legal movement’s greatest post-Obama triumphs is the “major questions doctrine,” which holds that courts should cast an especially skeptical eye on any agency action that concerns matters of “vast ‘economic and political significance.’”

The Court has applied this doctrine haphazardly. It handed down two decisions regarding vaccination, for example, that are difficult to reconcile with each other — the first determined that a vaccine mandate that applied to 84 million workers does involve a major question, while the second seemed to say that a mandate which applied to only 10 million workers does not involve a major question. Similarly, at one point the Court struck down a series of environmental regulations that never took effect, and that very well might have done nothing at all if they had gone into effect, on the grounds that they concerned a matter of vast economic and political significance.

In practice, in other words, it appears that the Court is willing to strike down regulations that have a good deal of “political significance” even if those regulations have little, if any, economic significance. That’s the opposite of Chevron, which called for courts to defer to the political judgments of executive branch officials.

But the Court has not yet fully repudiated Chevron’s other argument — that it is better for policy experts to make policy, and not judges. And that’s where the Loper Bright case could have its biggest impact.

Loper Bright is primarily a case about small, technical decisions that judges know little about

The specific policy at issue in Loper Bright is not something that many people who don’t own fishing vessels are likely to care about: It involves whether the National Marine Fisheries Service has the authority to require the commercial fishing industry to pay for some of the costs of placing observers on fishing vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.”

The fishing industry plaintiffs in Loper Bright do not claim this question, of who pays for federal monitors on fishing vessels, involves a matter of such great economic or political importance that courts should veto it under the major questions doctrine. Instead, they question a lower court’s decision to defer to the Fisheries Service’s determination that some of these costs should be paid by the industry — a decision that was rooted in Chevron.

Loper Bright, in other words, involves the kind of low-stakes decision by a federal agency that rarely becomes a matter of great political controversy, and that often goes unnoticed except by federal regulators and the industries that they regulate. Taken on its own, it really doesn’t matter all that much whether the federal government or the fishing industry pays for these monitors.

But, taken in the aggregate, the many low-stakes regulations handed down by various federal agencies are tremendously impactful. The Code of Federal Regulations stretches across approximately 200 different volumes, and most of the rules contained in this code deal with relatively uncontroversial matters like fishing monitors, nitrogen emissions by wastewater plants, or who is eligible for black lung benefits.

Under Chevron, courts will typically tell a party that objects to a federal regulation to take it up with the agency that promulgated that regulation. That doesn’t mean that these parties are powerless — federal law ordinarily requires agencies to seek input from regulated industries and individuals before handing down a new regulation, and those industries are free to lobby the agency to change existing rules. But Chevron does mean that the final decision on matters of policy will be made by policy experts and not by judges.

Should the Supreme Court overrule Chevron, or even if it should significantly weaken it, that could introduce chaos into the entire federal government. It would mean that every time the EPA tweaks an emissions standard, every time the Occupational Safety and Health Administration changes which kind of safety goggles certain workers must wear, or every time health regulators determine that a particular vaccine should be covered by health insurers, that this decision may be the subject of protracted litigation.

Worse, regulated industries are likely to shop around for friendly judges who may have an axe to grind against the current administration. And, in a world without Chevron, even longstanding regulations could be the subject of litigation. No one will know what the rules are until judges with no expertise on the relevant subject matter weigh in.

That is an inefficient way to run a government, and it is a bad way to run a country. Federal policy should be set by people who know what they are talking about.

Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

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Source URL: https://portside.org/2023-05-07/new-supreme-court-case-seeks-make-nine-justices-even-more-powerful