The Supreme Court overruled a key pillar of federal agency authority Friday, appropriating a massive amount of executive branch power to itself.
In overruling Chevron, a 40-year-old precedent, the Court decided that federal agencies no longer get to fill in the gaps of Congress’ laws with their experts’ own reasonable interpretation of how to carry them out; that authority now resides in the judiciary. It’s a power grab that the right-wing legal world has been marching towards for years — and they finally got a Court activist enough to do it.
Chief Justice John Roberts, often the tip of the spear for this movement, wrote the majority. Justice Elena Kagan, probably the Court’s best pro-agency voice, wrote the dissent, joined by her two liberal colleagues. Justices Neil Gorsuch and Clarence Thomas wrote solo concurrences.
Roberts completed the takeover with very little humility. The thinking underlying Chevron deference is that agencies are staffed by experts who understand the technicalities of their subject matter, and are best equipped to mold often broad statutes into day-to-day regulations. Judges, on the other hand, have no special insight into, say, the Environmental Protection Agency’s calculations to find permissible amounts of air pollution, or the Occupational Safety and Health Administration’s experience with how factories should be laid out.
“Delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise,” Roberts hand-waved.
(A dissenting Kagan quipped in reply to this section of Roberts’ opinion: “Score one for self-confidence; maybe not so high for self-reflection or -knowledge.”)
In fulfilling his right-wing mission, Roberts also pretended that letting judges, rather than agencies, fill in statutory specifics won’t result in a whipsawing based on the judges’ partisan leanings — since, per Roberts, judges don’t act on them. That’ll come as a surprise to the Biden administration, which has seen everything from power plant regulations to student debt relief summarily shot down by the conservative supermajority.
“Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences,” he intoned.
Gorsuch, son of an anti-agency EPA Administrator, cheered the elimination of “systemic bias in the government’s favor.” Thomas wrote that not only was Chevron deference wrong, it was an unconstitutional infringement on the separation of powers (the accumulation of executive branch power in the judiciary, on the other hand, does not seem to trouble him).
In her dissent, Kagan underscored the political mechanics underlying the majority opinion in usually bald terms for a justice on a Court so prizing comity and respect. She traced the conservatives’ recent rulings, in which they give themselves enough excuses to toss Chevron since it’s become outmoded anyway. In each, the majority grasped for novel reasons to ignore the precedent.
In a one-two punch, Kagan also pointed out that this kind of behavior, reverse engineering a string of cases to get a hall pass to overturn long established precedent, has become habitual.
“This Court has ‘avoided deferring under Chevron since 2016’ because it has been preparing to overrule Chevron since around that time,” she wrote. “That kind of self-help on the way to reversing precedent has become almost routine at this Court.”
Roberts tried to downplay the ramifications of the ruling by asserting that old agency cases decided by Chevron deference are still good law and beholden to the precedent the Court so blithely tossed away on Friday.
But Kagan countered that it was an unvarnished power grab.
“In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law,” she wrote. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”
For this conservative Court, appointing itself “czar” of the administrative state meshes with its partisan leanings seamlessly. Particularly in the modern era, Democratic administrations seek to use agency power far more muscularly, to enact regulations more aggressively. Republican ones, concerned with unwinding regulation, have less to lose from running into a judicial buzzsaw.
Kagan lists a series of Chevron questions to show how out of their depth judges will be in their new czarist role: From the Food and Drug Administration, “When does an alpha amino acid polymer qualify as such a ‘protein’?” From the Department of the Interior, “How much noise is consistent with ‘the natural quiet’? And how much of the park, for how many hours a day, must be that quiet for the ‘substantial restoration’ requirement to be met?”
“The majority disdains restraint,” she concluded, “and grasps for power.”
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