The US Supreme Court building. Photo by Senate Democrats on Flickr.
The “Supreme” Court of the United States just ruled to overturn the case Chevron v. Natural Resources Defense Council, further ensuring government gridlock and appointing activist judges instead of professional scientists to decide concrete answers to some of the most pressing questions of our day, such as those related to climate emissions and other environmental issues.
Of the many incredibly stupid decisions that have been issued by the courts recently, this is one of the stupidest, and we intend to explore why.
Just two days after issuing a decision legalizing the kind of corrupt bribes the Supreme Court has accepted, and one day after again ignoring the Clean Air Act and asserting that the federal government cannot regulate interstate emissions, the Supreme Court today issued a decision in Loper Bright Enterprises v. Raimondo that voided its earlier decision, Chevron v. Natural Resources Defense Council.
The original Chevron case actually went in favor of Chevron. NRDC had filed a lawsuit against the Reagan Administration's EPA, which was then run by Neil Gorsuch's mother, Anne Gorsuch, who was trying to ease regulations on oil companies. The court decided to accept the EPA's interpretation, giving Anne Gorsuch and the oil companies a major victory.
The Chevron case created something called “Chevron deference,” which means that when the details of a law are unclear, courts should defer to agency experts' reasonable interpretation of what those details mean. This doesn't mean that agencies can interpret things on a case-by-case basis, but rather that they can fill in the gaps left by Congress.
For the past 40 years, this decision has been the basis for much of the administrative law in this country.
After all, members of Congress are not scientists, so they pass laws like “EPA should regulate harmful air pollutants” and then leave it to the EPA to decide what pollutants those are, how they should be regulated, and how those regulations should change over time.
Judges are not scientists, so when instructed by Congress, it makes sense that judges will defer to the interpretations of experts who have a lot of data and spend a lot of time crafting specific regulations. In the process of creating and updating regulations, things will come up that Congress did not anticipate, and someone has to make that decision.
Agencies like EPA and NOAA, who work with some of the world's most respected climate scientists, are the best places to find the latest recommendations and answers to these questions. And Chevron's respect has enabled these agencies to function properly over the past few decades and will enable them to continue to do so as we confront the greatest problem created by mankind: climate change.
This deference is essential to effective government, and any lawyer or law student can tell you how important it has been in establishing administrative law over the past few decades.
Electric vehicles are also benefiting from the EPA setting emissions standards that will save lives and money, and the IRS tweaking its EV tax credit guidance to make it easier for consumers to take advantage of the credit.
Without deference to Chevron, reasonable rules designed to facilitate enforcement of the law could be challenged and reinterpreted by individual judges who are ignorant of the issues involved. And plaintiffs, such as large polluting companies hoping to avoid regulations and cause more damage, could forum shop in advance to find a particular judge who would rule in their favor and against the public interest.
To be clear, Chevron deference only applies when the law is ambiguous and when the agency's interpretation is reasonable and arrived at through proper government process (following public comment requirements, etc.). If the agency's interpretation is arbitrary, it may still be overruled. This is all covered by the Administrative Procedure Act (APA) and past court decisions that narrowed Chevron's scope.
Court rulings will lead to further confusion and a “dictatorship of the judges”
But in the Court's view, all of the foundations of administrative law that have stood for decades in this country must be lost. In Raimondo, the Court opined on the validity of NOAA regulations on fishing. The lower court did not actually rely entirely on Chevron deference in its decision, finding that the law was not ambiguous in the first place. But the Court took the opportunity to opine on Chevron, despite its limited applicability to the facts of this case.
Today's Supreme Court decision means that, rather than impartial professional scientists who can step in to solve complex issues and help fill in gaps that Congress neither anticipated nor understood, that responsibility will be placed in the hands of often ignorant, politically appointed judges who will be asked to make judgments about the appropriateness of particular regulations in a wide variety of areas for which they are not qualified, including air quality, technology, labor regulations, tariff policy, farm subsidies, housing development, privacy, and many other issues about which they know nothing.
That means more gridlock of the kind Americans hate, and more of the “active judges” everyone claims to hate. Even in the ideal situation envisioned by today's defenders of adjudication — a gridlock-free Congress able to quickly answer every agency's questions with new laws the agencies come together to agree on — the ambiguity and inefficiencies of having to consult yet another non-expert body on vague scientific questions would remain.
If you’re tired of government waste, inefficiency, and a bogged-down court system that takes years to get anything done (a direct violation of the Sixth Amendment), imagine what’s coming next.
Ever heard the term “judge-legislating”? That's what it is. The Supreme Court has taken the view that it should have ultimate responsibility for writing all regulations, even if it's a topic they know absolutely nothing about (or, even worse, a topic they have a direct personal interest in, and end up ruling on anyway).
It also means less participatory government. Government agencies are already no longer allowed to go off script and make up whatever they want. Interpretations will only be respected if they are reasonable, relate to questions not clearly answered by the law in question, and are decided after consulting with stakeholders (the public, industry, scientists, etc.). Courts can already strike down interpretations that are unreasonable or that involve arbitrary and capricious rulemaking (or they can make up their own nonsense, as courts have done before).
Now the Supreme Court formally intervenes before the people and elected officials in both the executive and legislative branches. Instead of voters, scientists, business groups, public interest groups, labor unions, etc. having a say, the unelected Supreme Court simply enforces its own way. Five of its members were appointed by the people who lost the presidential elections by about 500,000 and 3 million votes, respectively.
This is worse than “legislation by the courts” – it is a dictatorship of the courts. The courts have assumed all the powers of both the executive and the legislative branches for themselves.
And they were just waiting for a case where they could do that, because Neil Gorsuch (another unjust appointee who wrote his own concurring opinion today) had wanted to overturn Chevron for a long time. He preconceived his mind about the case long before the details were known, and he was waiting to act on that decision. This is generally considered a violation of legal precedent.
As is so often the case these days, the Court is completely ignorant not only of the legal and administrative issues its opinions may raise, but also of its own recent actions. Here is a passage from today's opinion:
Chevron is advocating for more than the “deference” historically given to agency interpretations. It requires that courts automatically give binding deference to agency interpretations, even those that have become inconsistent over time (see id. at 863), and applies where existing case law has held that an ambiguous statute has a different meaning (National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982). This regime is the opposite of the time-honored approach prescribed by the APA.
In this piece, John Roberts argues that agency interpretations are inadequate because they “become inconsistent over time.”
Leaving aside the inevitable inconsistencies in agency interpretations given that the world and technology are changing (e.g., as technology advances, more efficient vehicles become more practical and therefore stricter emissions limits are possible), Roberts ignores his own Court's inconsistencies on all sorts of issues in this passage.
And in terms of the law, the opinion invalidates decades of administrative law, leaving lawyers today wondering how they can do their jobs with this grenade thrown right into the middle of the field.
If government agencies should be stripped of their powers for inconsistency, Roberts is arguing here that he himself should be ignored.
At least, we agree with that portion of the opinion. Roberts and his illegitimate court are the antithesis of effective government and do not work for law and order or for the people. Their opinions should be treated as those coming from individuals who clearly have no interest in law or government.
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