SCOTUS takes aim at the government's regulatory shield

January 17, 2024 12:11 PM

SCOTUSblog: Supreme Court to hear major case on power of federal agencies

The Supreme Court will hear oral argument on Wednesday in a case involving the deference that courts should give to federal agencies’ interpretations of the laws that they administer. From health care to finance to environmental pollutants, administrative agencies use highly trained experts to interpret and carry out federal laws. Although the case may sound technical, it is one of the most closely watched cases of the court’s current term [...] The doctrine at the center of the case is known as the Chevron doctrine. It is named after the Supreme Court’s 1984 opinion in Chevron v. Natural Resources Defense Council [...] Justice John Paul Stevens set out a two-part test for courts to review an agency’s interpretation of a statute it administers. The court must first determine whether Congress has directly addressed the question at the center of the case. If it has not, the court must uphold the agency’s interpretation of the statute as long as it is reasonable. [...] it became one of the most significant rulings on federal administrative law, cited by federal courts more than 18,000 times. At the same time, Chevron has been a target for conservatives, who contend that courts – rather than federal agencies – should say what the law means.

Politico: Conservative justices seem poised to weaken power of federal agencies | NYT: A Potentially Huge Supreme Court Case Has a Hidden Conservative Backer | Vox: The Supreme Court's new “Chevron” case threatens to sow chaos throughout the government
posted by Rhaomi (44 comments total)

oh goody :(
posted by supermedusa at 12:12 PM on January 17 [3 favorites]

We already have, iirc, the lowest life expectancy of our cohort nations. Cutting the ability for agencies to regulate dangers of all stripes not explicitly called out by congress? It's going to nosedive in the next ten years. And there will be very few ways of knowing after the initial rollback, what is making its way into the air, water, food, goods, medicines, etc. And! Who will intervene if something dangerous is found!

The prospects are nightmarish. I assume with every publication heralding the death of Chevron that Gorsuch, Alito, or Thomas has spoiled the ending of this play for donors.
posted by Slackermagee at 12:22 PM on January 17 [21 favorites]

I could almost see the sense in overturning Chevron if the holding was stayed pending the nomination and confirmation of hundreds of additional federal judges to handle the workload that would be created by countless agency actions being taken to federal court every year.

There would still be lots of reasons not to overturn it, of course. Stare decisis and settled expectations, for one thing.

Speed, for another: federal litigation is extremely expensive and slow, whereas agency actions are comparatively cheap and fast.

Competence: federal judges are "generalists" (a polite way of saying "don't know anything in particular"), whereas agencies are generally staffed with people who are experts or at least experienced.

Political accountability: if you don't like how an agency interprets the law, vote in a different president. If you don't like how a court interprets the law...well, that's just kinda that until the composition of the relevant circuit court or the Supreme Court changes.
posted by jedicus at 12:40 PM on January 17 [15 favorites]

The Roberts Court has not shown itself to be particularly deferential to stare decisis, and, if anything, several justices have voiced or demonstrated their unwillingness to be bound by it in the last few Terms. So, that may not be as much of a constraint as it has been for many years preceding.
posted by the sobsister at 12:52 PM on January 17 [4 favorites]

I've got to say that I don't enjoy the feeling of "well, there's a court case, of course it will be decided in the most corrupt and destructive way possible to enrich the justices' far right cronies, there is no possibility that anything else will happen". This feeling that any time there's any question about state power it will be decided in the most crushing, terrible way possible is just...I don't know, I don't have any hope for a stable future in this country at all.

The only time I can gin up some hope it's either "I hope that my friends and I can achieve X this year" or "I hope that when things go absolutely to shit I am not unhoused and on the street" or "I hope that if I am called to undertake some act of political courage in order to protect someone or do the right thing that I am brave enough to trash my life by doing so."
posted by Frowner at 12:52 PM on January 17 [32 favorites]

This is one of those too-on-the-nose things, that one of the two cases that could be the vehicle for a runaway conservative supreme court to tear up the whole government, potentially undoing the country as we know it, will be referred to in future headlines by the shorthand "Relentless."
posted by nobody at 12:53 PM on January 17 [7 favorites]

The court has already been chipping away at the Chevron doctrine, most notably in West Virginia v. EPA (2022), which instituted the "major questions doctrine, [which] requires that an agency point to a “clear congressional authorization” when claiming authority from a statute."

We know that although the court may nibble around the edges, they wouldn't actually overturn a major, longstanding position, right?
posted by Mr.Know-it-some at 12:53 PM on January 17 [7 favorites]

Of course, they are going to be aligned with the ideas of the "Funding Fathers".
posted by techSupp0rt at 1:01 PM on January 17 [7 favorites]

The votes in the decision will let us know who on the court believes that society exists because we are safer as a group, that governments earn legitimacy by providing a measure of safety to its citizens: the food is safe, the air is breathable, the water is clean. It will also let us know who views society as a holding pen where the sheep wait until every last speck of fleece is gone, every possible morsel of value is gleaned, and really, it’s the sheep’s fault for being a sheep in the first place.
posted by Ghidorah at 1:03 PM on January 17 [34 favorites]

There's a litmus test on whether a judge rather than a federal agency director should interpret legislation in writing regulations.

Does his or her honor know what borosilicate glass is?

now you've watched the series Breaking Bad, or at least you know that it begins with the theft of glassware from a high school chemistry lab. One thing you should know about those flasks and tubes is that they are made of borosilicate glass, also known as Pyrex, and that this type of glass only became commonly available in the 1880's, after the death of James Monroe, the last of the Founding Fathers.

Before pyrex, scientists had to use soda glass for lab glassware, which is more fragile. They could not subject their gear to the heat, pressure, and vibrations that pyrex can handle. Laboratory glassware began improving in the 1840's, but it was borosilicate glass, four decades later, that enabled the emergence of chemistry as we know it today. With it, chemists were able to synthesize
molecules that had never before existed. And therein lies the rub. After synthesizing so many new substances, we've learned the hard way that they can cause harm to people, to property, and to nature, and that their use, handling, and disposal must be regulated for the safety of the public.

These novel compounds now number in the hundreds of thousands. The International Union of Pure and Applied Chemistry maintains two reference standards just for naming them, and these add up to 1900 pages. Novel compounds are synthesized every day, and more evidence about their effects, good and ill, is published every day. Congress has delegated the task of regulating their production, use and disposal to the EPA, FDA, OSHA and other agencies, and rightly so. The idea that Congress could handle the task with its procedures and norms is one that fails the giggle test.
posted by ocschwar at 1:04 PM on January 17 [74 favorites]

This is one of the really big ones the conservatives have been wanting to gut for a long, long time.
posted by azpenguin at 1:05 PM on January 17 [5 favorites]

This case didn't need to be a risk to Chevron. It could have just been decided consistent with Chevron, if the Court held that the NOAA decision to make the fishermen pay for the inspectors (in addition to transporting them) was arbitrary and capricious, and NOAA needed to come up with a different way to pay them (or do cost-share or something).

But this Court's grant of cert threw out that part of the case, and is only going to decide whether Chevron is still good law. (According to the Amicus podcast, anyway)

There used to be a rule of legal interpretation that told judges to limit their decision-making to the smallest thing they needed to decide. This Court has thrown that away along with all its ethics requirements.
posted by suelac at 1:05 PM on January 17 [24 favorites]

Things that rest on agency rulings/interpretation, off the top of my head:
- dual citizenship
- gender markers on passports
- gender markers on social security (and no-match letters)
- ACA forcing coverage of transition-related medical care
posted by hoyland at 1:26 PM on January 17 [9 favorites]

I've got to say that I don't enjoy the feeling of "well, there's a court case, of course it will be decided in the most corrupt and destructive way possible to enrich the justices' far right cronies, there is no possibility that anything else will happen". This feeling that any time there's any question about state power it will be decided in the most crushing, terrible way possible is just...I don't know, I don't have any hope for a stable future in this country at all.

It should be crushing. This is how the US loses the rule of law. It's horrible to watch and I don't know what solace to take anymore.
posted by ZaphodB at 1:39 PM on January 17 [23 favorites]

I just like saying "Chevron 2-step" as I learned it in law school bc it sounds like a dance.
posted by atomicstone at 1:53 PM on January 17

the timeline from "everyone knows they're eating a few pig assholes in their wiener" to "Enjoy your ration of pig assholes, it's the only protein you'll get for the month" is accelerating I see
posted by elkevelvet at 2:18 PM on January 17 [27 favorites]

ZaphodB: “This is how the US loses the rule of law. ”

The enemies of the idea that is America — the America that never was for Langston Hughes — do not believe in the rule of law. They only believe in the rule of the gun.
posted by ob1quixote at 3:11 PM on January 17 [4 favorites]

Maybe my doomometer is a little off, but the business world thrives on regulation, due to the need for stability, and clear rules that establish trust. While it's very easy to think of horrifying examples of unregulated industry run amok, would businesses really celebrate the neutering of the SEC? Like...how would commerce even work at that point? How does IP exist in a country where the USPTO can no longer make rules? I have trouble believing that trillions of dollars of business would welcome some of the darker outcomes suggested.
posted by mittens at 3:22 PM on January 17 [9 favorites]

I would have thought that conservatives already figured out how to deal with laws they didn't like - just don't adequately fund the regulatory agencies in charge of enforcing those laws - but I guess that wasn't enough for them.
posted by queensissy at 3:27 PM on January 17 [4 favorites]

The US is getting a taste of its own medicine, and it turns out the medicine is poison!

How many countries in Central/South America, Africa, South East Asia, etc. have had their governments overthrown (by America!) and their laws (re)written to enrich a small cabal of nationals and foreign corporations?

If we're all to be held equal under the rule of the law, then the law is a democratizing tool. Power always seeks to be above/beyond/unaccountable to any laws, even those of its own making. How can we hold power accountable when its aim is to be unaccountable (even at the risk of its own destruction)? The checks and balances worked for a little while, for some people, I guess?
posted by nikoniko at 3:28 PM on January 17 [15 favorites]

>The US is getting a taste of its own medicine, and it turns out the medicine is poison!

A friend of mine was fond of saying that fascism is just the application at home of the practices developed by colonialism abroad.
posted by The Manwich Horror at 3:38 PM on January 17 [40 favorites]

Once SCOTUS predictably guts Chevron for good, a part of me wants to see some agencies really lean in to their new dependence on Congress. As in completely suspend all operations from their most vital jobs to what brand of coffee is available in the break room, until Congress passes guidance on how to handle it. My schadenfreude would overflow, watching the GOP sweatily doubletalk their way through press conferences about plane crashes and mass food poisonings as they dither about parking permit colors at FAA and FDA offices.

Of course, a much more sane part of me recoils from the horrendous death and carnage which would ensue from this sort of administrative strike. And also from the fact that the libertarian Mad Max hellscape that would result is what a lot of conservatives would call "progress."
posted by Panjandrum at 5:24 PM on January 17 [5 favorites]

I have trouble believing that trillions of dollars of business would welcome some of the darker outcomes suggested.

Surely the leopards won't eat my face. The people with power and their lackeys seem completely unable to grasp the concept of unintended long term consequences of their short term gain. Or they think they will be insulated from those consequences.
posted by Mitheral at 5:37 PM on January 17 [9 favorites]

until Congress passes guidance on how to handle it

Unfortunately, Panjandrum, the GOP has just sort of realized they can reliably continue to hold the House simply by not doing anything at all. Just a quick check of what's passed the house in 2023-2024 shows just how little the GOP held House is actually doing, while complaining (and being believed by far too many) that the real problem is the other party refusing to go along with them (even though they hold the majority).

In that situation, I have no doubt the GOP would let planes drop out of the air, and do nothing while food safety becomes a thing of the past.
posted by Ghidorah at 5:43 PM on January 17 [7 favorites]

the GOP would let planes drop out of the air

Again though, I have to question the logic here, because that would mean tens of thousands of annual private jet flights would be grounded. Would big Republican donors countenance not being able to fly? Or would they begin to call representatives and senators into their office and demand an immediate fix? Because, counter to Mitheral's point above, there is an enormous amount of short-term consequence built into this as well.
posted by mittens at 6:04 PM on January 17 [2 favorites]

This has been coming for a long while and no-one has made any secret of what the plan was.
Surely the D's have a strategy to deal with it?
It's going to be fundraising emails and scolding lectures again isn't it?
posted by thatwhichfalls at 6:05 PM on January 17 [12 favorites]

I'm really tired of googling "[upcoming SCOTUS case] heritage foundation" and not being in the least bit surprised...
posted by credulous at 7:09 PM on January 17 [3 favorites]

sure it will all be fixed if we just vote harder
posted by Rev. Irreverent Revenant at 7:10 PM on January 17 [13 favorites]

Fucking Republicans, I hate them.
posted by wenestvedt at 7:23 PM on January 17 [6 favorites]

$%!%$#@$%#

PLEASE stop saying "Conservative" when you mean Right wing! These assholes are not Conservative, they are various flavors of reactionary, libertarian, and fascist. Joe Biden is a Conservative. Elena Kagan is a Conservative. Stop falling for this Overton Window double-speak bullshit, because it is literally the reason why Trump has taken over the Republican party, and "Centrist" Liberal/Neo-Liberal policies are the best the opposition can offer.
posted by Anoplura at 7:29 PM on January 17 [20 favorites]

> Anoplura: PLEASE stop saying "Conservative" when you mean Right wing! [...] Stop falling for this Overton Window double-speak bullshit, because it is literally the reason why Trump has taken over the Republican party

Counterpoint: Trump has taken over the Republican party because Republican voters actually like the things that he says and want him to do things he promises/threatens to do.
posted by mhum at 8:33 PM on January 17 [11 favorites]

fascism is just the application at home of the practices developed by colonialism abroad.

That is true. Hitler was a huge problem for many of the Europeans because Hitler treated Europeans like how the rest of the Europeans treated India, Africa, N & S America: colonially.
posted by MonsieurPEB at 9:46 PM on January 17 [4 favorites]

The Supreme Court has no power to enforce its rulings. This seems like a great time for congress and the executive to simply ignore them and move on with the work of governance. If they want to live in a judicial fantasy land, let ‘em.
posted by Just the one swan, actually at 10:49 PM on January 17 [7 favorites]

PLEASE stop saying "Conservative"

Now there's an argument I don't care about, but also care insufficiently enough about to emphatically add "I don't care"
posted by DeepSeaHaggis at 11:14 PM on January 17 [1 favorite]

One of the most “delightful” details of this case is the Chevron vs Natural Resources Defense Council case is about the regulatory behavior of the EPA during the first few years of the Reagan administration at a time when the EPA administrator was Ann Gorsuch, the mother of current Justice Gorsuch. Yes, I know in this day and age, conservative legal movement justices are expected to view cases as though the ideology is personal, but this is a 40-year long family grudge for the man. No wonder he’s been telegraphing this since right after his appointment.
posted by e1presidente at 11:37 PM on January 17 [17 favorites]

...so you're suggesting mommy issues driving national policy? Yeah, for the right-wingers, that scans.
posted by From Bklyn at 2:07 AM on January 18 [4 favorites]

I just like saying "Chevron 2-step" as I learned it in law school bc it sounds like a dance.

At long last, my niche interests combine! (Also, if anyone wants a very short and entertaining video on what the fuck is going on here with Chevron, enjoy.)
posted by corb at 6:30 AM on January 18 [2 favorites]

Once SCOTUS predictably guts Chevron for good, a part of me wants to see some agencies really lean in to their new dependence on Congress. As in completely suspend all operations from their most vital jobs to what brand of coffee is available in the break room, until Congress passes guidance on how to handle it.

Well, I think we don't have to quite freak out just yet - some of what I'm reading suggests they're considering just moving to the Skidmore test all around, right, including where agencies utilize formal proceedings? So giving deference, the benefit of the doubt if it's a close call, on mixed questions of law and fact, to the extent that the agency's argument is persuasive and their rulings are consistent, and no deference in situations where the agency is basically lawmaking, which honestly *does* seem reasonable as that has *always* been problematic.

Now, that would, in my estimation, force agencies to have relatively consistent overall activity from administration to administration - so no *major* shifts, but I don't think it would mean the end of administrative agencies acting without Congress specifically telling them to. And I don't know that it would be the end of the world for people to be able to have some predictability in the expectations coming out of agencies, especially the ones that carry criminal sanctions - I know that ostensibly the idea is that once something's been promulgated everyone is aware but that's just not true in the modern world.
posted by corb at 6:44 AM on January 18

watching the GOP sweatily doubletalk their way through press conferences about plane crashes and mass food poisonings as they dither about parking permit colors at FAA and FDA offices.

Hah what? See here's where the media runs interference. Normal media will never call the GOP responsible for Chevron gutting fuckery. They will blame it on congressional dysfunction or gridlock or whatever adjective they pull out of the thesaurus. Both sides the living fuck out of it by blaming Congress as a whole. The Democratic members that are trying to help will never get credit. It's thankless in the media. Whenever the Democratic Party does do anything to clean up the mess, the GOP trumpet the benefits for their states or districts from their press conferences like they voted for it all along and nobody corrects them.
posted by Your Childhood Pet Rock at 8:13 AM on January 18 [4 favorites]

corb, I'd like to think that's what would happen, but I'm guessing a Republican Congress would use this as an excuse to apply more "scrutiny" to things they don't like and generally have a chilling effect on the application of regulations (similar to how library/school books bans create an atmosphere of self censorship unless you're willing to fight the system and risk your job)
posted by kokaku at 8:26 AM on January 18 [1 favorite]

that would mean tens of thousands of annual private jet flights would be grounded.

Grounded by whom? That’s also up to the FAA normally.
posted by cardboard at 8:33 AM on January 18 [1 favorite]

Well I imagine insurance companies would be less than excited about covering planes and their occupants that are flying thru uncontrolled space or utilizing shutdown airports.
posted by Mitheral at 8:52 AM on January 18

Even without the financial motive, I can't see the Trump Supreme Court upholding Chevron for the simple reason that they're ideologically committed to the idea that regulation in and of itself is harmful and bad.

Their inevitable decision to overturn Chevron will, of course, appear to involve a massive dose of hypocracy. In other contexts they promote the idea of an all powerful executive branch and the idea that the executive, who decides how to execute laws, has the ability to decide what a regulation means would be decided in favor of the executive. Therefore people might reasonably concude the Trump Supreme Court is supremely hypoctritical.

But they aren't hypocrites. They're just liars. They have misrepresented their actual thought process and only a fool believes them when they say stuff about executive power. They are committed to a right wing ideology and will advance that ideology. If doing so requires they go against positions they held in the pst, then they will go against those positions. Because all they actually care about is ideological victory.
posted by sotonohito at 12:13 PM on January 18 [6 favorites]

Charlie Pierce sends his newsletters on Saturday morning. I just finished reading this week's issue on the Chevron debacle at the Supreme Court. I was moved to come and ask: Why are we letting these people decide anything about anything? At least three of them are accomplices in a criminal enterprise and must be removed.
posted by ob1quixote at 7:50 AM on January 20 [1 favorite]