The rush of end-of-term decisions from the Supreme Court, not to mention last night’s presidential debate, gives me many more potential topics to write about than I could ever get to. How to choose? On the subject of the presidential debate, I doubt that I have anything to say that a hundred others have not said in the past 24 hours. So then, which of the latest crop of Supreme Court decisions is the most important?
On that last question, my vote goes to Loper Bright Enterprises v. Raimondo. This is the case that has rather emphatically overruled the 1984 case of Chevron v. Natural Resources Defense Council.
If you have read something about either the new Loper Bright case or the prior (1984) Chevron case, you have undoubtedly seen the issue of the two being defined in terms of “deference”: that is, when the legality of a regulatory action of a federal agency is challenged in court, should (or must) the court “defer” to the interpretation that the agency itself has given to the governing statute, or to the challenged regulation? Or is the interpretation of statutes and regulations fundamentally the job of the courts, which therefore must not be left to the agencies.
When put in these terms, the issue seems dry and technical, and it’s hard to see why it is important. But it is hugely important. The reason is that this issue of what they call “deference” is a big piece of what puts the government on a one-way upward growth ratchet.
I had a post all the way back in March 2017 that laid out the stakes in this “Chevron deference” game. The occasion for the post was that Neil Gorsuch had been nominated to the Supreme Court by newly-elected President Trump, and in some decisions that Gorsuch had written as an appeals court judge he had staked out a position critical of this deference. In one case, Gorsuch had written that “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.” Gorsuch’s position on this subject became an issue in his confirmation. However, he was confirmed, and took his seat in April 2017.
My post re-framed the question not in the dry terms of “deference,” but rather in terms of how such judicial abdication allows the government to grow without check:
“Chevron deference” is the ultimate unfettering of the government to enable it to expand as much as it wants, and with nothing to stop it. Of course every agency interpretation of a statute or regulation will be in a way to give the agency itself more power! For Exhibit A, look to the EPA under Obama, which has interpreted the term “waters of the United States” to cover every puddle and wet spot (in order to claim jurisdiction over a good half of all private land) and has determined that a colorless, odorless gas (CO2) is a “danger to human health and welfare” (in order to claim jurisdiction over the entire energy sector of the economy).
Loper Bright is explicit that Chevron is getting overruled. Chief Justice Roberts is the author of the majority opinion. The basis for the decision is fairly narrow, mainly that the Administrative Procedure Act of 1946 provides that when a regulation is challenged, the courts will decide “all relevant questions of law.” Justices Thomas and Gorsuch, in separate concurrences, point out broader reasons why Chevron deference was fundamentally wrong. Thomas notes that such deference is in conflict with the separation of powers, and the basic function of the courts to interpret the law. Gorsuch makes the point that the courts must not favor either side in a case before them, but the Chevron rule fundamentally alters that rule to favor the government.
Will the overruling of Chevron bring about a significant change in the dynamic of endless government growth? I think so, but perhaps not immediately. Note that Loper Bright is coming now near the end of a Biden term, where the odds seem to increasingly favor the return of a Republican administration in 2025. Such a new administration will be highly likely to seek large-scale roll-backs of recently issued regulations, most notably in the areas of climate and energy. The Chevron doctrine has been useful to agencies in regulatory roll-backs as well as expansions. Obviously there have been far fewer roll-backs than expansions over the past many decades. But indeed the Chevron case itself arose in the context of a regulatory roll-back by EPA during the Reagan administration, which roll-back had been blocked by the DC Circuit. The DC Circuit is currently dominated by Biden and Obama-appointed judges, who can be expected to resist regulatory roll-backs of a new Trump administration.
So this process will take years to play out. But overall, my view is that the end of Chevron is good news for those resisting the growth of the government.
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I hope Trump will have effective majorities in both houses, so the underlying laws can be changed, rather than relying on interpretation of existing laws.
IMO is necessary to reverse MA v EPA on subsequent CO2 endangerment finding. All other pathways are fraught with much lawfare. CAA defining a pollutant as ‘that which pollutes’ is the root of much evil—maybe good intent, but lousy execution.
A statutory declaration that CO2 is not a “pollutant” would be a cleaner way to deal with it.
Easy enough, one sentence in ANY legislation stating “For all laws and regulations within the US government, CO2 IS NOT a pollutant”.
Now it is a poison when in high enough concentrations just like H2O, or N2, etc.
I think there are too many judges who would not get the Penn and Teller “Ban DHMO” petition routine. DiHydrogenMonOxide.
Not really a poison, but yes one can suffocate if too much CO2 or N2 or even He keeps you from getting Oxygen.
Believe it or not, you can also die from too much oxygen.
You can die from too much of anything.
Drinking too much DHMO can kill.
“The dose makes the poison”
https://en.wikipedia.org/wiki/The_dose_makes_the_poison
In our confined space safety training the problem with many gases is that, if they collect in those spaces, they can displace Oxygen. CO2 is one of those. (We used liquid CO2 where I worked)
Of course, some gases are toxic in themselves whether or not they displace Oxygen (Chlorine gas, for example) but CO2 is not one of them.
Every substance, even water, has a lethal maximum dose. Many have a lethal minimum as well.
For example, CO2. Many body functions are regulated by CO2, not O2. Even breathing.
I think the 1990 amendments added causing climate change to one of the several definitions of pollutant in the CAA. But endangerment is also required before a pollutant can be regulated. The Court allowed EPA to declare endangerment by citing the IPCC and doing no rebuttal argument if their own. That sounds like deference.
I’m sure I’ll have orgasmic pleasure at seeing MA vs EPA reversed.
Please warn the rest of us if that’s happening.
“CAA defining a pollutant as ‘that which pollutes’”
Yes. That’s like saying: A woman is anyone who identifies as one.
Or: A racist is someone who practices racism.
Circular, self-referential illogic.
Didn’t the establishment, way back whenever of the ‘chevron defense’ precedent, also empower these now hugely bloated federal bureaucracies to not only judge things but to write their own ‘law’ (call it what you want), sit as judge on the law, then enforce the law, and then impose punishment for infractions of the law? IOW bypass the constitution.
I do not understand how it took this long for this overturn to happen. But then again, power corrupts and absolute power……
Oh, and Putin is not a saint……but……
Exec bureaucracy sitting alone as prosecutor, judge, and jury was also just overturned by SEC v Jarkesy. BIG deal. Will extend to all other current NLRB and other admin ‘private’ administrative law proceedings.
It took this long because the LEFT controlled the SCOTUS since the mid 60s.
TRUMP! appointed 3 of the 6 person majority vote of the SCOTUS. These recent rulings are showing just how big a deal TRUMP’S!! first term was, and how much better it could have been if ms “you need to ask a biologist what a “woman” is Brown would have been a true originalist appointed by TRUMP!.
I thought that G W Bush 2000-2009 along with the republican congress should have stripped the EPA of the right to regulate CO2 emissions
Millenials and Gen Zers have had global warming propaganda force fed to them from Pre-K to post doc. Republican politicians are afraid that if they push too hard they will never have power again. Remember, most politicians are cowards at heart.
They are neither ‘comfortable’ nor ‘effective’ when they have ‘power’. They are only interested in the $$$, while the Dems are interested in, AND effective with, Power.
There was not a bucket of spit’s difference between Bush’s ‘compassionate conservatism’ and the Democrat Party’s (pre-Obama) progressivism.
Back then, before Harry Reid changed the 60 % rule, it took 60 votes in the US Senate to pass any legislation, or confirm any Presidential appointment, etc.
Please google the US Senate and you will see ONLY DEMOCRATS have ever had the 60% in the Senate. Reid changed the rule for judicial appointments under Obama to STACK the DC circuit court.
If TRUMP! wins, along with a majority in the House and Senate with conservative leadership, the US Administrative State, also known as the DEEP State must be reduced by over 50% and the DC Circuit must be eliminated. All federal crimes MUST be tried in a 90%+ conservative county, not 96% Democrat DC.
Finally, DC must be returned to the states of VA and Maryland with the federal government only keeping the Mall and federal buildings, and the ONLY legal residents of the remaining District of Columbia to be the President and his family actually living in the White House. That does away with all the crap about DC getting money from the Federal government and having “representation” in the House.
Just a quick thought – how hard is it to fire federal employees?
The portion of DC from Virginia seceded in 1860. What is now DC all came from Maryland.
That nit aside, I agree.
The Chevron deference doctrine was in my opinion wrongly decided in 1984. It disenfranchised the judiciary in favor of the unelected executive bureaucracy. Loper Bright could not have been a better case to overturn it. I am only disappointed that Robert’s did so on fairly narrow APA grounds, rather than the fundamentally more important much broader grounds described in the concurrences.
It will take a while for Loper to wend thru the administrative state, which undoubtedly will trigger more SCOTUS opinions. But wend it will.
We will now have three historic SCOTUS opinions in the past two years: Dobbs overturning Roe, Loper overturning Chevron, and tomorrow novel presidential immunity—something as fundamental as 1803’s Madison v Marbury (which established the right of judicial constitutional review of Congressional Acts). My bet is Roberts delivers the majority opinion—his eternal legal legacy following Marshall 1803..
‘My bet is Roberts delivers the majority opinion—his eternal legal legacy following Marshall 1803.’
Any prediction on how this pans out? I’ve been wary of Roberts since he took a dive for Obama Care.
I can hear the gears turning in the Progressive/Marxist heads on how to diminish the impact of this decision. Unfortunately Congress and SCOTUS have been divided into an “us and them” scenario instead of what’s good for America. We/Americans need to start thinking of One America.
Crazy, you MUST be a leftist to think this SCOTUS is US VS THEM. They are regularly voting to return power to the people or the states that was TAKEN by 60 years of leftist SCOTUS rulings inventing “rights” out of whole cloth.
BTW, you don’t need to hear the gears, just read the leftist’s dissenting opinion.
Even Roberts’ Obamacare ruling where he and the libs found that the fine was a tax, even though the Justice department not only NEVER asked for that ruling, but insisted the fee WAS NOT a tax, and that the Federal Government had a right to FORCE YOU to buy health insurance, therefore making you a slave to insurance companies.
“Leftist”? Far from it. Either you or I missed what I said in my post. Let me be more direct …… we’re a divided country and as long as we stand divided we’ll fail and that’s the goal of the Marxists. It shouldn’t be we won or they won, it should be we all win.
Very nice Francis. In the past I think most of us felt the government would be there to make sure others couldn’t mistreat or harm us. I think most of us were comfortable with that thought. In the past century as government has grown bigger and more powerful we have found ourselves in the position that we need protection from the government as well as bad people. It is something that creeped up on us most of us not taking notice of it. It is now past time for the government to be whittled back it is completely out of control.
And 4 years of TRUMP! without McConnel and Paul Ryan to block much needed deregulation and elimination of multiple cabinet departments that K street lobbyists (former Senators and Representatives and Generals and Bureaucrats) NEED to make money.
PS
You don’t need to look any farther than Jeff Bezos getting 3.4 BILLION dollars to build a lunar lander when he can’t even get an orbital rocket into service.
Blue Origin was founded in 2000! and has only had sub orbital flights. 24 years and can’t get into orbit??? BUT a Democrat controlled congress and Brandon gave their good buddy Bezos 3.4 billion.
Compare to Elon Musk and SpaceX, founded in 2002 and now having launched Falcon and Falcon Heavy for 362 orbital missions and landed boosters 326 times for reuse, loosing only 1 operational booster to a flight failure. NASA just picked SpaceX to deorbit the ISS at the end of life, at a MUCH LOWER than projected cost to taxpayers. SpaceX didn’t even enter the early bidding because Musk does not bid “cost plus” development contracts. In the end, they gave a fixed price bid and NASA had no choice but to accept a 50% total cost of funds allocated by congress bid.
Just wondering- why is the US alone paying to deorbit the ISS?
It will get far less attention than abortion, but the societal impact of this decision could be much larger.
Anything that slows the continuous expansion of gov power increases the odds we’ll have a country for another century.
Menton ==> I have my doubts about the understanding of the general US citizen as to how their Federal government is actually meant to function. And, I believe, the general “person on the street” doesn’t know what powers are granted to the Federal government by the Constitution.
I’ll write a primer on this and what it has to do with Chevron — which has been wrong from the beginning.
‘And, I believe, the general “person on the street” doesn’t know what powers are granted to the Federal government by the Constitution.’
The big problem is that the general ‘person on the street’ doesn’t know that the correct answer is ‘few and defined’ while the powers reserved to the states are ‘numerous and indefinite’.
There are members of Congress who don’t believe there are any limits to the federal government.
It would be hard to settle on one single point where and when the train first went off the rails, but some historians point out that Teddy Roosevelt was the first President to routinely operate under the assumption that he could take any action that wasn’t specifically prohibited by the Constitution.
story tip
The fruit loops are at it again.: The case for climate neuroscience (msn.com)
Enjoy.
There’s money in them-thar climate shills !
Of course it’s good news for those resisting the growth of the government.
That’s why democrats oppose it. Democrats are fundamentally insistent on expanding the growth of government, particularly when more power is assumed by the Executive dept.. They always claim that more government growth the better. I have never heard one say otherwise. It has been this way for almost a century since the New Deal.
It’s a constant battle against the unelected jackbooters and their cancel culture-
Hobart councillor who advocates for women’s rights to receive apology after being ‘lied to’ over venue booking (msn.com)
The founding fathers recognized that even good intentions are harmful in large doses,
This is good.
The first priority of the government is to protect the people from the government.