July 4, 2024
Source: Truthout
Blogtrepreneur - Legal Gavel & Open Law Book. Flickr.
On June 28, the six reactionary members of the Supreme Court put a final nail in the coffin of Chevron v. Natural Resources Defense Council, in the companion cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
By overruling Chevron, the court dramatically curtailed the power of federal agencies to interpret statutes they administer, ruling that courts should provide their own interpretations of ambiguous statutes. This decision will imperil the rights of workers and consumers and threaten the environment and our health and safety, while providing a boon to corporations.
During Neil Gorsuch’s 2017 Supreme Court confirmation hearing, former Sen. Al Franken confronted him with the Trump administration’s goal of “deconstruction of the administrative state,” or deregulation. Franken said:
[T]o those who subscribe to President Trump’s extreme view, Chevron is the only thing standing between them and what the President’s chief strategist Steve Bannon called the ‘deconstruction of the administrative state,’ which is shorthand for gutting any environmental or consumer protection measure that gets in the way of corporate profit margins.
Franken reminded Gorsuch that when Bannon spoke “before a gathering of conservative activists,” he explained that the president’s “appointees were selected to bring about this deconstruction.” Franken added, “I suspect that your nomination, given your views on Chevron, is a key part of that strategy.”
Indeed, Gorsuch has long been gunning for Chevron. While serving as a judge on the 10th Circuit Court of Appeals, Gorsuch wrote in a 2016 concurrence in Gutierrez-Brizuela v. Lynch, “Maybe the time has come to face the behemoth.”
The doctrine of “Chevron deference” required that when a congressional law is ambiguous on a certain matter, courts must defer to the federal regulatory agency’s reasonable construction of the statute.
Courts have used Chevron deference to: uphold a National Labor Relations Board decision that certain workers constitute employees entitled to protections of the National Labor Relations Act; affirm an Environmental Protection Agency (EPA) rule that required states to reduce emissions from power plants; sustain a Department of Labor interpretation of the Black Lung Benefits Act to allow coal miners with black lung disease to get compensation; and accept the EPA’s revised regulations under the Toxic Substances Control Act to provide enhanced protection from lead paint exposure.
A Judicial Power Grab
In Loper Bright, the D.C. Circuit Court of Appeals had relied on Chevron to overrule a challenge by commercial fishing companies to a rule promulgated by the National Marine Fisheries Service (NMFS). The rule required the fishing industry to pay the costs of observers who monitor compliance with fishing management plans.
The statute says the government can require fishing boats to carry monitors, but it doesn’t specify who must pay for them. The appellate court in Loper Bright held that the NMFS’s interpretation that the federal fishery law authorized the industry to fund the monitors was reasonable, so the court should defer to that interpretation.
In reversing the D.C. Circuit decision, Chief Justice John Roberts wrote for the six right-wingers on the court that Chevron deference was inconsistent with the Administrative Procedure Act (APA), which sets forth the procedures federal agencies must adhere to and courts must follow in reviewing agency actions.
The APA, according to Roberts, says that courts should “decide legal questions by applying their own judgment” and thus “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference.” Roberts added it thus “remains the responsibility of the court to decide whether the law means what the agency says.”
Roberts concluded that “courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
“Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” Roberts noted. “Courts do.”
But, as Elena Kagan wrote in dissent, joined by Sonia Sotomayor and Ketanji Brown Jackson, “Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not.” (Jackson participated in Relentless but recused herself from Loper Bright because she heard the case when she was a judge on the Court of Appeals.)
In “one fell swoop,” the court gave “itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law,” Kagan penned. “Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy.”
“Today,” Kagan wrote, “the Court flips the script: It is now ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris.” She charged that “the majority turns itself into the country’s administrative czar.”
Gorsuch wrote a 34-page concurrence explaining why he thought that stare decisis compelled this result. But for 40 years, Chevron deference has been the bedrock rule on agency actions regarding health and safety, the environment, and consumers’ and workers’ rights. It’s been cited in more than 19,000 judicial opinions.
“That rule has formed the backdrop against which Congress, courts, and agencies — as well as regulated parties and the public — all have operated for decades. It has been applied in thousands of judicial decisions,” Kagan noted. “It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
The Deconstruction of the Administrative State
When they opposed Gorsuch’s nomination to the Supreme Court, the nonprofit group Alliance for Justice (AFJ) warned of the dangers of second-guessing agency experts: “It is difficult to overstate the damage [Gorsuch’s] position would cause.” He “would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people,” AFJ wrote. “Importantly, the agency leaders whose expertise Judge Gorsuch would dismiss are answerable to the people’s elected representatives in Congress.”
In 2023, more than 50 right-wing organizations and think tanks published a 920-page blueprint for a reactionary agenda called “Mandate for Leadership: A Conservative Promise” for 2025. Dismantling the administrative state was one of its key goals. “When it comes to ensuring that freedom can flourish, nothing is more important than deconstructing the centralized administrative state,” it said. “For conservatives to have a fighting chance to take on the Administrative State and reform our federal government, the work must start now. The entirety of this effort is to support the next conservative President, whoever he or she may be.”
“[U]nder the Biden Administration, that administrative state has imposed the most assertive left-wing social-engineering agenda in the agencies’ history and ratcheted up regulatory costs on small businesses and other productive industry,” the blueprint reads. “The agencies’ authorities have been abused by the Left to favor human resources bureaucracies, climate-change activists, and union bosses — all against the interest of American workers.”
Four of the groups that signed onto the document — America First Legal Foundation, American Center for Law and Justice, Competitive Enterprise Institute, and Foundation for Government Accountability — also filed amicus briefs in Loper Bright.
Overruling Chevron deference is part and parcel of the right-wing strategy. As Kagan noted, the Supreme Court has recently “substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration,” “on climate change for that of the Environmental Protection Agency” and “on student loans for that of the Department of Education.”
Loper Bright is emblematic of a “power shift . . . away from agencies and in favor of the businesses and industries they regulate,” David Savage wrote in the Los Angeles Times. Corporations will take aim at labor regulations that protect workers. Banks and financial service companies will weaken consumer protections. And the fossil fuel industry will resist regulations that impact their profits.
Overruling Chevron could affect the way insurance is administered by Medicare, Medicaid and the Affordable Care Act. And it will likely result in the weakening or elimination of countless rules protecting workers, health care, drug and food safety, the environment, telecommunications and the financial sector.
The administrative state is being dismantled, case-by-case, by the reactionaries on the Supreme Court, three of whom were appointed by Donald Trump. His administration made the deconstruction of the administrative state a centerpiece of its national strategy to serve its corporate masters, and the overturning of Chevron may be its crowning achievement.
One tactic Trump tried to use to deconstruct the administrative state was creating a new job category to convert some civil service positions to at-will employment and remove the right to appeal. He signed Executive Order 13957 in October 2020, but Joe Biden rescinded it on January 22, 2021.
As corporate lawyers ready additional attacks on administrative agencies, the Supreme Court just made their job even easier. On July 1, the same right-wing supermajority ruled in Corner Post v. Federal Reserve that the six-year statute of limitations for filing lawsuits under the Administrative Procedure Act will be extended. It now begins to run when a company is first affected by a regulation instead of when it was first issued.
In light of the demise of the Chevron case, there is now a move in Congress to codify the doctrine of Chevron deference.
Copyright Truthout.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law, and past president of the National Lawyers Guild. She sits on the national advisory boards of Assange Defense and Veterans For Peace. A member of the bureau of the International Association of Democratic Lawyers, she is the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
Blogtrepreneur - Legal Gavel & Open Law Book. Flickr.
On June 28, the six reactionary members of the Supreme Court put a final nail in the coffin of Chevron v. Natural Resources Defense Council, in the companion cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
By overruling Chevron, the court dramatically curtailed the power of federal agencies to interpret statutes they administer, ruling that courts should provide their own interpretations of ambiguous statutes. This decision will imperil the rights of workers and consumers and threaten the environment and our health and safety, while providing a boon to corporations.
During Neil Gorsuch’s 2017 Supreme Court confirmation hearing, former Sen. Al Franken confronted him with the Trump administration’s goal of “deconstruction of the administrative state,” or deregulation. Franken said:
[T]o those who subscribe to President Trump’s extreme view, Chevron is the only thing standing between them and what the President’s chief strategist Steve Bannon called the ‘deconstruction of the administrative state,’ which is shorthand for gutting any environmental or consumer protection measure that gets in the way of corporate profit margins.
Franken reminded Gorsuch that when Bannon spoke “before a gathering of conservative activists,” he explained that the president’s “appointees were selected to bring about this deconstruction.” Franken added, “I suspect that your nomination, given your views on Chevron, is a key part of that strategy.”
Indeed, Gorsuch has long been gunning for Chevron. While serving as a judge on the 10th Circuit Court of Appeals, Gorsuch wrote in a 2016 concurrence in Gutierrez-Brizuela v. Lynch, “Maybe the time has come to face the behemoth.”
The doctrine of “Chevron deference” required that when a congressional law is ambiguous on a certain matter, courts must defer to the federal regulatory agency’s reasonable construction of the statute.
Courts have used Chevron deference to: uphold a National Labor Relations Board decision that certain workers constitute employees entitled to protections of the National Labor Relations Act; affirm an Environmental Protection Agency (EPA) rule that required states to reduce emissions from power plants; sustain a Department of Labor interpretation of the Black Lung Benefits Act to allow coal miners with black lung disease to get compensation; and accept the EPA’s revised regulations under the Toxic Substances Control Act to provide enhanced protection from lead paint exposure.
A Judicial Power Grab
In Loper Bright, the D.C. Circuit Court of Appeals had relied on Chevron to overrule a challenge by commercial fishing companies to a rule promulgated by the National Marine Fisheries Service (NMFS). The rule required the fishing industry to pay the costs of observers who monitor compliance with fishing management plans.
The statute says the government can require fishing boats to carry monitors, but it doesn’t specify who must pay for them. The appellate court in Loper Bright held that the NMFS’s interpretation that the federal fishery law authorized the industry to fund the monitors was reasonable, so the court should defer to that interpretation.
In reversing the D.C. Circuit decision, Chief Justice John Roberts wrote for the six right-wingers on the court that Chevron deference was inconsistent with the Administrative Procedure Act (APA), which sets forth the procedures federal agencies must adhere to and courts must follow in reviewing agency actions.
The APA, according to Roberts, says that courts should “decide legal questions by applying their own judgment” and thus “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference.” Roberts added it thus “remains the responsibility of the court to decide whether the law means what the agency says.”
Roberts concluded that “courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
“Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” Roberts noted. “Courts do.”
But, as Elena Kagan wrote in dissent, joined by Sonia Sotomayor and Ketanji Brown Jackson, “Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not.” (Jackson participated in Relentless but recused herself from Loper Bright because she heard the case when she was a judge on the Court of Appeals.)
In “one fell swoop,” the court gave “itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law,” Kagan penned. “Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy.”
“Today,” Kagan wrote, “the Court flips the script: It is now ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris.” She charged that “the majority turns itself into the country’s administrative czar.”
Gorsuch wrote a 34-page concurrence explaining why he thought that stare decisis compelled this result. But for 40 years, Chevron deference has been the bedrock rule on agency actions regarding health and safety, the environment, and consumers’ and workers’ rights. It’s been cited in more than 19,000 judicial opinions.
“That rule has formed the backdrop against which Congress, courts, and agencies — as well as regulated parties and the public — all have operated for decades. It has been applied in thousands of judicial decisions,” Kagan noted. “It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
The Deconstruction of the Administrative State
When they opposed Gorsuch’s nomination to the Supreme Court, the nonprofit group Alliance for Justice (AFJ) warned of the dangers of second-guessing agency experts: “It is difficult to overstate the damage [Gorsuch’s] position would cause.” He “would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people,” AFJ wrote. “Importantly, the agency leaders whose expertise Judge Gorsuch would dismiss are answerable to the people’s elected representatives in Congress.”
In 2023, more than 50 right-wing organizations and think tanks published a 920-page blueprint for a reactionary agenda called “Mandate for Leadership: A Conservative Promise” for 2025. Dismantling the administrative state was one of its key goals. “When it comes to ensuring that freedom can flourish, nothing is more important than deconstructing the centralized administrative state,” it said. “For conservatives to have a fighting chance to take on the Administrative State and reform our federal government, the work must start now. The entirety of this effort is to support the next conservative President, whoever he or she may be.”
“[U]nder the Biden Administration, that administrative state has imposed the most assertive left-wing social-engineering agenda in the agencies’ history and ratcheted up regulatory costs on small businesses and other productive industry,” the blueprint reads. “The agencies’ authorities have been abused by the Left to favor human resources bureaucracies, climate-change activists, and union bosses — all against the interest of American workers.”
Four of the groups that signed onto the document — America First Legal Foundation, American Center for Law and Justice, Competitive Enterprise Institute, and Foundation for Government Accountability — also filed amicus briefs in Loper Bright.
Overruling Chevron deference is part and parcel of the right-wing strategy. As Kagan noted, the Supreme Court has recently “substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration,” “on climate change for that of the Environmental Protection Agency” and “on student loans for that of the Department of Education.”
Loper Bright is emblematic of a “power shift . . . away from agencies and in favor of the businesses and industries they regulate,” David Savage wrote in the Los Angeles Times. Corporations will take aim at labor regulations that protect workers. Banks and financial service companies will weaken consumer protections. And the fossil fuel industry will resist regulations that impact their profits.
Overruling Chevron could affect the way insurance is administered by Medicare, Medicaid and the Affordable Care Act. And it will likely result in the weakening or elimination of countless rules protecting workers, health care, drug and food safety, the environment, telecommunications and the financial sector.
The administrative state is being dismantled, case-by-case, by the reactionaries on the Supreme Court, three of whom were appointed by Donald Trump. His administration made the deconstruction of the administrative state a centerpiece of its national strategy to serve its corporate masters, and the overturning of Chevron may be its crowning achievement.
One tactic Trump tried to use to deconstruct the administrative state was creating a new job category to convert some civil service positions to at-will employment and remove the right to appeal. He signed Executive Order 13957 in October 2020, but Joe Biden rescinded it on January 22, 2021.
As corporate lawyers ready additional attacks on administrative agencies, the Supreme Court just made their job even easier. On July 1, the same right-wing supermajority ruled in Corner Post v. Federal Reserve that the six-year statute of limitations for filing lawsuits under the Administrative Procedure Act will be extended. It now begins to run when a company is first affected by a regulation instead of when it was first issued.
In light of the demise of the Chevron case, there is now a move in Congress to codify the doctrine of Chevron deference.
Copyright Truthout.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law, and past president of the National Lawyers Guild. She sits on the national advisory boards of Assange Defense and Veterans For Peace. A member of the bureau of the International Association of Democratic Lawyers, she is the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
No comments:
Post a Comment