Analysis

Elena Kagan’s scathing Chevron dissent highlights US supreme court’s disregard for precedent

The court is turning into ‘an administrative czar’, says liberal justice after 40-year-old doctrine is overturned

Ed Pilkington

THE GUARDIAN

Fri 28 Jun 2024 

Elena Kagan issued a devastating dissent to the decision of her hard-right fellow supreme court justices to overturn the Chevron doctrine that has been a cornerstone of federal regulation for 40 years, accusing the majority of turning itself into “the country’s administrative czar”.

Kagan was joined by her two fellow liberal-leaning justices, Sonia Sotomayor and Ketanji Brown Jackson, in delivering a withering criticism of the actions of the ultra-right supermajority that was created by Donald Trump. Such caustic missives have become commonplace from the three outnumbered liberals, with each carefully crafted dissent sounding more incensed and despairing than the last.



US supreme court strikes down 40-year precedent, reducing power of federal agencies

In a speech at Harvard last month, Sotomayor revealed that after some of the supreme court’s recent decisions she has gone back to her office, closed the door and cried.

“There have been those days, and there are likely to be more,” she said.

Kagan’s dissent in Loper Bright Enterprises v Raimondo on Friday was the literary equivalent of crying over 33 pages. But she was also searingly angry.

She said that in one fell swoop, the rightwing majority had snatched the ability to make complex decisions over regulatory matters away from federal agencies and awarded the power to themselves.
A rule of judicial humility gives way to a rule of judicial hubrisElena Kagan, in her dissent

“As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar,” she wrote.

For 40 years, she wrote, the Chevron doctrine, set out by the same supreme court in a 1984 ruling, had supported regulatory efforts by the US government by granting federal experts the ability to make reasonable decisions where congressional law was ambiguous. She gave a few examples of the work that was facilitated as a result, such as “keeping air and water clean, food and drugs safe, and financial markets honest”.

Now, the hard-right supermajority had flipped that on its head.

Instead of federal experts adjudicating on all manner of intricate scientific and technical questions – such as addressing the climate crisis, deciding on the country’s healthcare system or controlling AI – now judges would make those critical calls.

Kagan, displaying no desire to pull her punches, portrayed Friday’s ruling as a blatant power grab by the chief justice, John Roberts, and his five ultra-right peers, three of whom were appointed by Trump – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

“A rule of judicial humility gives way to a rule of judicial hubris,” she wrote.

Not for the first time, her most caustic comments relate to stare decisis – the adherence to legal precedent that is the foundation stone of the rule of law. Respect for the previous judgments of the supreme court is a reminder to judges that “wisdom often lies in what prior judges have done. It is a brake on the urge to convert every new judge’s opinion into a new legal rule or regime.”

By contrast, she went on: “It is impossible to pretend that today’s decision is a one-off, in its treatment of precedent.”

It has become an unquestionable pattern: the new hard-right supermajority has a fondness for tearing up their own court’s precedents stretching back decades. They did it when they eviscerated the right to an abortion in 2022, upending 50 years of settled law; they did it again last year when they prohibited affirmative action in university admissions, casting out 40 years of legal precedent; and now they’ve done it once more after 40 years to Chevron.

“Just my own defenses of stare decisis, my own dissents to this court’s reversals of settled law, by now fill a small volume,” Kagan said, her final words as plaintive as they were defiant.

US Supreme Court strikes down Chevron deference, freeing courts to overrule regulatory agencies in expert determinations

Matthew Farrell | U. Toronto Faculty of Law, CA

JUNE 28, 2024

The US Supreme Court ruled on Friday that courts must exercise independent judgment in assessing an agency’s statutory authority. This overruled the deference long afforded to an agency’s interpretation of its mandate under Chevron U.S.A. v. Natural Resources Defense Council.

The case of Loper Bright Enterprises v. Raimondo Secretary of Commerce considered the regulation of fishing. The petitioners challenged the decision of the National Marine Fisheries Service (NMFS) to require the petitioners to pay for observers required under a fishery management plan. They argued that the NMFS did not act within its mandate from the Magnuson-Stevens Fishery Conservation and Management Act (MSA).

The Supreme Court did not decide on the facts of Loper. However, these facts provided an ambiguity in legislation through which the court could overrule the Chevron deference and remand Loper for further proceedings. In Chevron, the court found that “the Administrator’s interpretation… is entitled to deference” when it involves technical and complex reasoning to reconcile conflicting policies. The Loper court disagreed, finding that “Chevron was a judicial invention that required judges to disregard their statutory duties.”

In reaching this conclusion, the court analyzed the Administrative Procedure Act (APA), legislation that determines the role of courts. The court found that the Chevron deference conflicts with the APA, which states that “the reviewing court” is to “decide all relevant questions of law.” The majority went on to discuss how the court has consistently minimized the Chevron deference’s scope over time–they hadn’t even used the principle since 2016–recognition that its “justifying presumption is… a fiction.”

The dissent attempted to defend Chevron deference by stating that judges must defer to agencies with institutional knowledge because “judges are not experts in the field.” However, the majority confirms that agencies’ statutory authority is a question of law, and, therefore, deference to agencies contradicts directly with the APA.

Though the court’s decision in Loper may contradict the stare decisis principle of judicial continuity, the court found that some cases must involve the court “correcting [its] own mistakes.” Despite this, the court still confirmed that the holdings of previous cases using the Chevron deference (including Chevron itself) stand, perhaps easing concern over a wave of new litigation over old issues

 

Supreme Court broadly shifts power from federal agencies to judges

BY RACHEL FRAZIN - 06/29/24 

The Supreme Court has broadly expanded the power of judges at the expense of federal agencies with a pair of decisions this week, and it could be poised to do so again next week. 

Altogether, its actions to transfer authority from agencies to the judiciary could curtail a wide range of financial, environmental, workplace and consumer protections. 

“It’s just part of a continuing trend with the federal judiciary and the Supreme Court in particular, exercising more and more power … at the expense, potentially, of the other branches,” said Don Goodson, deputy director of the Institute for Policy Integrity at New York University School of Law. 

On Friday, the court struck down a legal doctrine known as the Chevron deference that instructed judges to defer to agencies when the law is ambiguous, in a case known as Loper Bright v. Raimondo.

That decision came one day after it ruled that the Securities and Exchange Commission’s (SEC) use of internal administrative courts to try civil fraud cases was unconstitutional — a move that could reverberate to other agencies that also use administrative courts. 

In a scathing dissent on the Chevron case, Justice Elena Kagan wrote “it is impossible to pretend that today’s decision is a one-off” in how it treats agencies, noting that the SEC case similarly kneecapped them. 

“This very Term presents yet another example of the Court’s resolve to roll back agency authority,” she added. 

Next week the court is expected to issue a decision in a third case that could weaken regulatory statutes of limitation and give opponents of a federal action more time to sue.

“You do see a court that’s growing increasingly skeptical of executive power and administrative power” over the last decade, said Jesse Panuccio, who was the Justice Department’s acting associate attorney general during the Trump administration. 

“The executive branch has grown vastly in its powers and in the scope of its regulation,” he added. “I think the court is saying, if that’s where we’re going to be, we need to rein in some of these presumptions in favor of agencies.”

But critics of the court’s moves say that they could weaken the agencies to the detriment of the country. 

James Goodwin, policy director at the Center for Progressive Reform, said that the opinions issued this past week are “all pointed in the same anti-regulatory direction.”

He said the SEC case will “have a chilling effect on agency enforcement actions,” while the Loper Bright case will have a “similar chilling effect on agencies, but with respect to policy making.”

The latter case is expected to allow judges to more easily strike down federal agency rules. That increase in judicial power is technically politically neutral, though liberal critics say the federal judiciary’s conservative makeup could in practice enable right-wing principles to prevail in many cases.

Goodson said that even prior to the decision, some agencies may have already been avoiding actions that would rely on Chevron out of fear that the precedent would be overturned. 

“Many people have been treating Chevron as overruled for several years now because of the extreme skepticism that has been coming from members of the court,” he said. 

The SEC case will apply “anytime federal agencies seek to pursue civil penalties for certain kinds of violations,” like fraud, requiring such cases to go to the federal judiciary, said Cary Coglianese, a law professor at the University of Pennsylvania. 

But he noted that agencies like the Consumer Financial Protection Bureau could also see their cases shifted to federal court — and that the ruling could reach nonfinancial agencies, too, in cases like fraudulent filing of environmental reports with the government. 

The cases echo a prior decision that also curbed federal agencies’ power. In that 2022 ruling, the Supreme Court not only limited how the Environmental Protection Agency (EPA) can regulate climate change, it also codified a legal theory known as the “major questions doctrine,” which holds that regulations of substantial national significance need to have clear authorization from Congress.

Ann Carlson, an environmental law professor at the University of California, Los Angeles, said that decision will have an even greater impact than the more recent ones.

When the major questions doctrine is applied, “the agency doesn’t even have the power to regulate, let alone to regulate in a particular way,” said Carlson, who also recently served in the National Highway Traffic Safety Administration under President Biden. 

Carlson said that Friday’s decision is “one more weapon … in an arsenal being used to attack the administrative state,” but that she expects the “major questions doctrine” to be much more impactful. 

Goodwin, with the Center for Progressive Reform, similarly said that he expects major questions to come into play for the biggest cases, while the Loper Bright ruling may have an impact in cases involving more “intermediate” rules like endangered species protections. 

Panuccio, the former Justice Department official who is now a partner at law firm Boies Schiller Flexner, said that in the coming years, the court has the opportunity to go even further in reining in the other branches by looking to restrict what authorities Congress is allowed to delegate to the agencies. 

“That’s always a challenge that pops up here and there, which is … is the court willing to revisit what’s called the non-delegation doctrine and put some limits on what Congress allows agencies to do?” he said. 

“So long as there are regulated parties and parties on the losing end of a government decision, that’s always something litigants are going to try …. to try to get that question before the court again,” he added.