Why You Should Be Concerned about Loper Bright

 

In the season of Trump, it's hard to find bandwidth for anything else happening in the Supreme Court, especially as we wait for the decision on presidential immunity. But the decision in Loper Bright v. Raimondo, handed down on Friday, will have a direct impact on all of our lives. It will upend agency regulations that are used to implement federal law. That sounds dry and far away from our daily lives. But it’s not.

The administrative state, which conservatives have spent decades attacking, has operated since the Chevron decision in 1984 on the basic premise that Congress passes laws and agencies issue regulations that implement them. What happened when a regulated entity didn’t like an agency’s decision? They could sue.

The longstanding Chevron deference doctrine required courts to defer to agency action when the law was ambiguous and the agency’s view was reasonable. That came to an end on Friday, when Chief Justice Roberts wrote for the majority in no uncertain terms, “Chevron is overruled.” After Loper Bright, it’s up to the courts.

Judges need no longer defer to subject matter experts at a federal agency after the Supreme Court wrote that the experts have “no special competence” and decided courts were better suited to make these decisions.

So now, it’s up to the courts. Want to know if you can use the abortion drug mifepristone? Despite studies confirming the drug is safer than Viagra and Tylenol, that decision is up to Judge Matthew Kacsmaryk in Amarillo, Texas. If he decides the FDA was wrong to approve it, well then, he can deny women access to medication abortion.

What happens if a company that builds airplanes objects to an agency decision that requires them to use, say, six bolts to attach an engine to a plane? They can go to court and make their case to a federal judge. And then, that judge—a lawyer, not an engineer—gets to decide how it will work.

The arbitrary action the court expresses concern agencies might take is replaced by arbitrary action from far less qualified federal judges—possibly shopped for in the infamous one-judge-divisions like the one that gave us the mifepristone case. Do you feel less safe suddenly? Like courts’ decisions might be politically tinged?

Rhode Island Senator Sheldon Whitehouse joined us for “Five Questions” after the oral argument and explained in practical terms why Chevron deference made sense for people interested in good government, “The Supreme Court’s Chevron framework ensures that unelected judges defer on certain complex technical questions to the career experts. 

These agency experts report to politically accountable agency heads and the president, and are subject to congressional and judicial oversight, to be sure that they properly implement and refine Congress’s stated policy objectives. For nearly four decades, Chevron has been bedrock administrative law and a key piece of the modern regulatory structure that Congress set up. But right-wing corporate forces resent Chevron, so they’ve cooked up and laundered fringe legal theories to try to strike it down…

“Eliminating Chevron deference would degrade accountability, and the separation of powers, by shifting the power to make expert policy decisions from an elected Congress and the tightly monitored executive agencies to the judiciary where neither technical expertise nor political accountability are to be found. And it’s all part of a well-coordinated, industry-driven campaign to dismantle administrative agencies.”

It’s no secret that part of the conservative agenda that led groups like the Federalist Society to back Donald Trump was the prospect of putting judges on the Court who would reverse this longstanding precedent, just like they did with Roe v. Wade. 

Even before Loper Bright, the Court was well on the way to abandoning Chevron deference with the emergence of new approaches like the major questions doctrine that allowed the Court to abandon Chevron deference when they deemed the issue under consideration, in their discretion, a “major question.”

They did that in cases like the one where they reversed OSHA’s workplace vaccine mandate during the pandemic, West Virgina v. EPA, where the Court rejected the EPA’s regulation of greenhouse gas emissions, and Biden v. Nebraska, where the Supreme Court rejected the student loan forgiveness program approved by the Department of Education. But that was not enough. Loper Bright reverses Chevron outright, yet another indication that no precedent is safe from the ideological ambitions of the Roberts Court.

The death of Chevron is not something that we’ll discuss tonight and be done with. The uncertainty and change will be an enduring feature of the administrative landscape going forward. Especially since the only way agencies can now avoid having the courts oversee their decisions is to have Congress pass clear, unambiguous laws—something that has rarely been the case and is even less likely with the current political dysfunction in that institution. It’s important for us to understand that this is a highly technical legal ruling that impacts us all.

If you’re interested in a little more information, here are a few good places to study up:

·       Review Loper Bright itself.

·       Ruth Marcus at the Washington Post has this piece, where she writes, “Administrative law doesn’t pack the emotional punch of abortion access or LGBTQ+ rights, but the day-to-day impact of this seemingly arcane issue is profound.”

·       Dahlia Lithwick explained the case’s impact on MSNBC’s The Katie Phang Show.

 

This description of the case from the conservative group Alliance Defending Freedom, which I shared with you all in the newsletter just ahead of oral argument, gives you a good sense of how carefully advocates behind this case selected this particular fact pattern to make agency decision making look as overbearing as possible:

“A National Marine Fisheries Service regulation requires that herring fishing boats allow an additional person on board their small boats to serve as a monitor, tracking compliance with federal regulations. The fishermen must also pay the monitor’s salary of around $700 per day. Overall, the regulation reduces fishing profits by about 20%. Loper Bright Enterprises, a fishing company in New England, and other fisheries sued to challenge this federal government rule, arguing that NMFS lacked statutory authority to force them to pay for these monitors.”

As I wrote back then, this narrative ignores the importance of monitoring. And the point of the case was never about providing relief for small businesses, it was about taking decision-making about the administrative regulation of big business out of the hands of agencies and giving it over to the newly remade conservative courts, with a federal judiciary fully 28% of whom had been appointed by Donald Trump as of 2021.

(That number has likely dropped with Biden appointments, but only slightly, because barring emergency, judges appointed by other Democrats are the most likely to leave office with a Democrat in the White House, while Republican appointees try to stay on the bench until a Republican is in the White House).

This has been the work of decades—ever since the Chevron case was decided. Case exemplifies the reasons we say the Court is on the ballot. It’s about judicial ethics, or the lack of them. Justice Thomas participated in the decision as did Justice Alito, although both of them vacationed at the expense of folks who had an interest in the outcome of this case. It’s also about the kind of justices—and judges—who are appointed to the bench and whether they will abide by the principle of stare decisis, or following binding precedent, that is essential to a rule of law system.

When longstanding precedent is reversed simply because the personalities that make up the Court change, it undercuts public confidence in the rule of law. The president determines who to appoint to vacate judicial seats. Cases like Loper Bright dramatically reshape the balance of power between the three branches of government, knocking the checks and balances envisioned by the Founding Fathers off kilter.

Resetting that balance is not something that will happen overnight. It will take time and commitment to the fundamentals of democracy. But we know it can be done. Conservatives played a very long game to overturn Roe v. Wade and Chevron. Restoring the rule of law will require the same dedication and vigilance.

We’re in this together,

Joyce Vance