The right-wing Court just made another massive power grab
As the Supreme Court’s term comes to an end, nine decisions came down over three days last week, with the most anticipated expected later today. Here's a recap.
Last week was highly intense for many Americans. Wednesday kicked off with two Supreme Court decisions: Snyder v. United States and Murthy v. Missouri. Thursday followed with four more: SEC v. Jarkesy, Harrington v. Purdue Pharma L.P., Ohio v. Environmental Protection Agency, and Moyle v. United States. As if that was not enough for one week, we watched the first presidential debate of the 2024 election. Then, we woke up to three more significant decisions: Loper Bright Enterprises v. Raimondo, Fischer v. United States, and City of Grant Pass v. Johnson. Today, we should be getting a decision on the Trump immunity case.
Whew. Anyone else exhausted and overwhelmed?
Among these decisions, there are some serious rulings that American voters need to understand before heading to the polls this November. Although we don’t elect the Supreme Court justices, we elect the individual who gets to appoint them. And the conservative majority now on the bench is the work of former President Donald Trump.
One of the most consequential decisions this term is the Loper Bright case. In order to understand it, we have to go back to 1984 when the Court issued a decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council.
Let’s get into it.
I wrote about Loper Bright for The Bulwark (published today). There are also Little Law School videos on my YouTube channel that break down the backgrounds for a lot of these cases and explain why they are significant.
What was the Chevron case about?
A quick lesson on the separation of powers before we begin to help understand why this case is so important.
Article I of the United States Constitution gives Congress the power of lawmaking. Meanwhile, Article III states that the judicial power is given to one Supreme Court and any inferior courts that Congress may create. The judiciary is charged with adjudicating disputes that arise under the laws that Congress enacts. Federal judges are appointed by the President and then confirmed by the Senate.
As part of the New Deal, Congress created many new regulators to help sort through the fallout from the Great Depression. These regulators are known as federal agencies. Think: Department of Education, Department of Defense, Department of Homeland Security, Department of Agriculture, etc. These agencies ultimately answer to the President and not only execute the laws but also make laws known as “regulations.” The idea is that the agencies have experts in each field who are better equipped to regulate than generalist judges.
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In the 1930s, litigants challenged some of these regulations and argued that only Congress was allowed to make laws and that giving lawmaking authority to these federal agencies was unconstitutional. The Supreme Court disagreed and held that it was constitutional for Congress to create institutions that made laws so long as Congress includes an “intelligible principle” in its legislation to help guide agencies to fill in the blanks of their legislation with regulations.
In 1946, regulated industries urged Congress to set forth a process the agencies must follow when they regulate and what standards courts should apply when the regulations are challenged in court. Congress passed an umbrella law known as the Administrative Procedure Act (APA), which does just that.
Chevron was a case brought to interpret the APA, and the Supreme Court held that courts should defer to an agency’s reasonable interpretation of an ambiguous statute. If Congress explicitly leaves a gap in the statute, then, the gap constitutes an express delegation of authority to the agency to fill the gap through promulgating regulations. This prevents courts from micromanaging an agency’s everyday, routine regulatory decisions.
Why does Chevron’s reversal matter?
The court’s decision in Chevron was based on three rationales. The first was that courts could foster a predictable and consistent environment within the regulated community by deferring to agency interpretations of statutes, so long as they are reasonable. The Court feared that if courts instead got to decide how to regulate, then regulated entities would face a hodge-podge of laws across the country depending on which court hears the challenge.
The second rationale was quite obvious: agencies have greater expertise in these regulatory areas than judges.
Lastly, the Court saw this as an effort to protect the separation of powers. The Court reasoned that because regulations function as laws and Congress can hand off its legislative baton to agencies to fill in the blanks of statutes, deference to agency rulemaking amounts to deference to Congress, which is accountable to voters. Agencies likewise have more democratic legitimacy than courts because agency personnel answer to an elected president. Moreover, regulations are often promulgated through a process that allows regular people to file written comments to guide the agency, and courts review whether agencies take into account those comments. So, in their own way, regulations are surprisingly democratic.
The APA has remained mostly untouched since it was first enacted, except for amendments to add the Freedom of Information Act. The relevant part of the APA for the purposes of Chevron and Loper Bright comes from Section 706. This provision states that if a regulation is challenged in court, the court must “decide all relevant question of law, [and] interpret constitutional and statutory provisions.”
It then goes on to say that courts can “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . contrary to constitutional right, power, privilege, or immunity; [or] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
The test outlined in Chevron consisted of two parts. Part one gave courts the power to strike down regulations de novo (reviewing issues without reference to any legal conclusion or assumption previously made) if they were “in excess of” the power Congress gave to an agency. If a regulation was not clearly contradictory to a statute, the next step required the courts to defer to agencies’ reasonable interpretations. Courts can also send a regulation back to an agency if it is “arbitrary” and “capricious” based on the facts before the agency. The “arbitrary” and “capricious” standard is very close to step two of Chevron.
What was Loper Bright about?
Now that we have that out of the way, let’s get into Friday’s case.
Loper Bright was a case brought by fishermen challenging a regulation passed by a federal agency, the National Marine Fisheries Service. This regulation required them to pay part of the cost to have fishing monitors on their vessels, which is just about 20% of their daily revenue.
The U.S. Court of Appeals for the D.C. Circuit invoked Chevron, reasoning that although federal law was silent about whether the government could pay these fees, it was “reasonable” for the agency to impose them. On appeal to the Supreme Court, the question was whether Chevron should continue to be upheld or whether the 40-year-old precedent, the cornerstone for administrative law, should be overruled.
What did the Supreme Court say?
Chief Justice Roberts wrote the 6-2 majority opinion. Justice Thomas and Justice Gorsuch wrote concurring opinions. Justice Kagan dissented, joined by Justice Sotomayor and Justice Jackson.
The majority held: “The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.” The judges replaced Chevron with what amounts to a judges-know-better-than-agencies standard.
In his majority opinion, Chief Justice Roberts explained that from the language in Section 706, as well as the notorious 1804 ruling in Marbury v. Madison (which held the Supreme Court decides questions of law for the other branches), that Congress specifically directed that the courts be the final deciders when it comes to interpreting federal statutes. Essentially, what Roberts is saying is that courts can override agencies’ reading of statutes and substitute their own judgment for that of the regulatory agencies because courts, not agencies, resolve legal ambiguities.
Roberts’s opinion does not answer the question of how courts should decide what Congress meant in a statute, however. If Congress wanted them to regulate, arguably, courts should read the statute to allow them deference—just as Chevron held.
The result? The Supreme Court is now the regulator-in-chief. Yet, as Justice Kagan reminded us in her dissent, “Agencies have expertise in those areas; courts do not.”
Without a doubt, the decision is going to lead to uncertainty and confusion within the lower courts and among the broader public — much like the majority managed to produce with its unsettling decisions in cases regarding abortion and guns. As Justice Kagan summarized perfectly: “A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.”
Does Loper Bright have anything to do with the Ohio v Environmental Protection Agency?
To understand the implications of Loper Bright, it is best to view it alongside Ohio, a 5-4 decision with Justice Gorsuch writing the majority opinion. Justice Barrett wrote a dissenting opinion, joined by Justice Sotomayor, Justice Kagan, and Justice Jackson.
A quick recap of the Ohio case: Under the Clean Air Act’s “good neighbor” provision, the EPA set new air-quality standards for ozone pollution in 2015. As part of these standards, states had to submit plans indicating how to achieve them. The EPA rejected 21 states’ plans for “proposing no changes and additionally addressed two states that had failed to submit plans.” Three states, companies, and trade associations asked the court to temporarily block the EPA rule, arguing that the results would be disastrous.
Once it reached the Supreme Court, the majority applied the “arbitrary and capricious” language of Section 706. It held that the EPA's decision was so arbitrary and capricious that it deserved emergency relief. In her dissent, Justice Barrett correctly noted that the majority’s decision ignores a slew of standards both under the Clean Air Act and the test for injunctive relief — in effect, affording the Supreme Court more power than it actually has.
We can undoubtedly expect that the outcome of Loper Bright is that the Court will continue to grab lawmaking power for itself in some instances by striking down regulations it doesn’t like—for whatever reason and without a whiff of concern for expert agencies’ contrary judgments.
What were the other major decisions?
Moyle v. United States: The Supreme Court ruled that it should not have taken a case about whether Idaho’s strict abortion law conflicted with the federal Emergency Medical Treatment and Labor Act.
Murthy v. Missouri: In a case that several individuals and two states brought, the Supreme Court ruled that the plaintiffs had not sufficiently established standing to seek an injunction preventing government officials from communicating with social media platforms.
SEC v. Jarkesy: The Supreme Court held that “when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.”
Harrington v. Purdue Pharma L.P.: The Supreme Court struck down a plan between the company that was crucial in the creation and marketing of OxyContin and the thousands of families that were negatively impacted by this drug. The plan was for the families to receive a certain amount of money for civil liability, which the pharmaceutical company bore. In return, they would be protected from future litigation. The Supreme Court held that “the bankruptcy code does not authorize a release and injunction that…effectively seek[s] to discharge claims against a non-debtor without the consent of the affected claimants.”
Fischer v. United States: The Supreme Court held that prosecutors improperly charged the individuals indicted for various offenses related to the January 6th insurrection. Instead, the Court maintained, “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding or attempted to do so.”
City of Grant Pass v. Johnson: The Supreme Court ruled that arresting homeless people for camping on public property did not constitute “cruel and unusual punishment” under the Eighth Amendment. So homeless people can be constitutionally arrested for sleeping on the streets.
I will discuss each of these cases in greater depth, but for now, these are the key takeaways everyone should understand. It is critical that we recognize the impacts of each Supreme Court decision as we approach the election.
Follow the facts,
KW
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Kim, thanks for the update!