Among the Supreme Court’s numerous retreats from what had long been considered “settled law” was a ruling that received relatively little publicity. The general public can be forgiven for failing to realize just how startling–and wrongheaded–the Court’s abandonment of something called “Chevron deference” really was, but the legal community certainly understood the decision as a monumental retreat from precedent and respect for expertise–not to mention an unwarranted increase in judicial power.
Chevron deference was shorthand for a judicial doctrine that has been applied for 40 years in over 18,000 decisions to situations where Congress sends ambiguous directions to executive agencies staffed with people who are experts in the particular area. That ambiguity is necessary; Congress isn’t equipped to determine the proper levels of contaminants in water or to identify carcinogenic chemicals–and even if such specifics were passed, they would be incredibly difficult to monitor and update as technical knowledge advances.
Recognizing that practical reality, Courts have deferred to agency interpretations/clarifications of those ambiguities, recognizing that judges–like Congresspersons– generally lack the specific technical knowledge required.
The required deference could certainly be overcome. If a plaintiff challenging the agency’s interpretations provided evidence that agency interpretations were unreasonable, Courts could–and did–overrule them. Deference simply required the judicial branch to acknowledge–and respect– the existence of specialized subject-matter expertise, and to recognize that the possession of superior legal knowledge does not make the judicial branch all-knowing.
As an article from Pro Publica reported,
That doctrine, known as Chevron deference, was named after the 1984 Supreme Court case in which it emerged, and it offered an answer to a recurring question: What happens when Congress passes a law granting power to a federal agency but fails to precisely define the boundaries of that power?
In such situations, the doctrine of Chevron deference instructed federal judges to rely on the interpretations made by federal agencies, as long as those interpretations were reasonable, since agencies typically have greater expertise in their subject areas than judges. The Loper Bright decision erased that, commanding federal judges to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”
Legal scholars condemned the Loper ruling as yet another departure from stare decisis–respect for precedent–and as an unwarranted departure from a reasonable balance between executive and judicial authority. Those intent upon reducing federal authority–and regulations–cheered it.
But it turns out that the Chevron decision might take its place alongside Dobbs, as a judicial overreach that ideologues may regret. (Dobbs was largely responsible for the non-appearance of the anticipated “Red wave” in 2022.)
A recent article from Stateline suggests that the ruling will allow Blue states to more effectively resist Trump Administration policies.
A major U.S. Supreme Court decision this summer was hailed as a conservative court’s broadside against a Democratic administration, giving red states more backing to delay or overturn policies they don’t like, such as transgender protections and clean energy goals.
But the ruling in the Loper Bright case, which granted courts more power to scrutinize federal rules, can go both ways. Experts say it will likely give blue states more leeway to attack any forthcoming policy changes from President-elect Donald Trump — ranging from immigration and the environment to Medicaid and civil rights.
Lawsuits already are being planned in many states. California is holding a special session to set aside money for legal fights, and Connecticut, Massachusetts, Minnesota, New Jersey and New York also are considering legal strategies
Democratic governors in Colorado and Illinois formed a coalition in November to “fortify essential democratic rights nationwide.”
In effect, the ruling opens more federal rules to those court challenges. Blue states now have a new weapon to fight conservative federal rules on issues such as immigration, climate change, abortion access and civil rights….
Most experts see the change as an obstacle to a new Republican administration looking to make sweeping changes but lacking enough support in Congress to pass large-scale legislation. Any proposals restricting access to abortion or attempting to dismantle the Affordable Care Act or Medicaid expansion will be more complicated, said Zachary Baron, a director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute.
Our fractious, gerrymandered Congress hasn’t approved a major immigration or environmental law for decades. That Congressional inability to legislate “has forced both Democratic and Republican administrations to change policy through either executive order or federal regulations that can now be more easily challenged by hostile states in the courts.”
The Loper decision hobbled some of the Biden Administration’s regulatory efforts. The linked article points to a number of ways in which it will also complicate–and prevent–measures threatened by the incoming Trump administration.
Sauce for the goose……
Can we be sure roberts and the rest of the scotus MAGAts won’t change their minds once trump is in the white house? Just a thought.
“Recognizing that practical reality,…” that reality is unknown to the majority of SCOTUS and MAGA supporters today; with Trump’s entire list of Cabinet and administration appointees even further in the dark…about anything practical. I don’t believe the majority of those who have expressed concerns for those of us who fear the coming dreadnought at noon on January 20, 2025. They are spouting lip-service to an unknown fact of life which is protected by their ability wealth while the rest work to simply feed themselves and their families and provide basic medical care.
By the time the Trump voters get hit with his dictatorship it will be too late to remind them to “Be Careful What You Wish For” and they find themselves in the same condition as those of us who knew not to wish for another Trump term in the White House. SCOTUS members have already gone back on their promise not to end the past SCOTUS decisions which are now lost in their history.
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In my field, designing process improvements for continuously running massively complex coating lines, we always aimed to improve the future of manufacturing. However, being human, we also realize that unintentional consequences are another possibility. So, we often started with various levels of mock-ups, experiments, trials, or the ability to quickly undo our intentions in case Murphey’s Law happened.
Shouldn’t that apply to laws that direct the behavior in states that are (or were) united?
Proceed cautiously because intentions are not always realized, and danger lurks not far away.
Indeed, if Elon Musk knows the automotive business, he has experience making practical improvements, sometimes not as intended. Consider also the number of multi-million dollar SpaceX disasters.
This essay sort of confirms what many of us on this blog have been discussing for a long time: This nihilistic, arrogant and perverse SCOTUS majority isn’t nearly as smart as it thinks it is. Raw intelligence is so often weakened and/or overwhelmed by the primitive instincts associated with ideology. This court’s majority is so full of itself that it failed – as it will continue to do – to understand the consequences of its actions and decisions. When the lawsuits from blue states start rolling in, watch for a Three Stooges-like melee of backtracking and further misinterpretation of the law.
They just can’t help themselves. They are mesmerized by their power.
The contempt of “expertise” by MAGA reminds me of other periods in world history where regimes eliminated “elites”. Russia under Stalin, China under Mao, Cambodia under Pol Pot, etc. Each time it was a disaster and resulted in the death of millions.
As has been quoted here before, “those who do not know history are doomed to repeat it; those who do not want history to be taught want to repeat it.”
It seems a bit Pollyannish to think that the courts will be consistent in following the law. If any challenges get to SCOTUS the six will stand on their heads to uphold Orange Jesus’s wish, regardless of the position taken. Deus adiuva nos!
**Why the Latin? I get tired of writing. God help us!
I believe Peggy nailed it. Trump’s appointments to the federal courts set a clear path for the oligarchs to get their way to SCOTUS, where a 6-3 decision is guaranteed in their favor. Also, Texas has an abundance of anti-worker legislation, making any attempt to organize it extremely difficult. Musk knows that the retirement funds of the Big US Auto manufacturers are albatrosses choking off their future profits.
The Tech Bros left Silicon Valley for Texas because of its preferential tax laws and access to the greased court system. I never paid much attention to the Chevron “deference” case, but I suspected it was Charles Koch-engineered chicanery since it was about overriding regulatory bodies. And guess what, with a bit of research this morning, I found the evidence that Charles Koch and Leonard Leo were, in fact, behind the ruling in the Loper Bright case.
https://news.bloomberglaw.com/us-law-week/big-donors-back-new-group-to-fight-deep-state-at-supreme-court
The above article has a flow chart showing how Charles Koch’s money meanders through his dark web of nonprofits into the pockets of Leo and his ring of lawyers. These aren’t Plaintiffs hiring lawyers to fight the government because it’s the right thing to do – Leo and Koch choose these cases to get rid of what they call the “deep state.”
You will be proven wrong if you think they have yet to think through retaliation by blue states. They are insulated with appeals courts and SCOTUS. Koch, Bezos, and Musk know that the only way for Americans to fight back against the oligarchy’s power is through organized labor or the working class withholding their productivity.
Divide and conquer! School choice takes away the sense of loyalty to community. Handing power for basic inalienable God given rights back to states, chips further away at loyalty to state. I predict migration to states that better align with one’s beliefs will continue to happen until loyalty to country is fully diminished. Then that “collapse from the inside” may just finally come to fruition and our foes will applaud with joy.
You can lead masses to truth but you can not force them to see past their alternative facts.
How do we get United again?
Every time I read about how Blue states are putting guardrails into place, it just hammers home to me that I live in a very shitty, very Red state & life will get even more complicated & sad for a lot of people here. I want to stay & fight, but it seems overwhelming at my age.
You see?
After January 20th it’s too late! After Barack Obama was elected for the second time, everyone assumed Hillary Clinton would win, and against DT later on, that was just a given.
Some of us back then were still talking about the supreme Court issues, and how The appointment of supreme Court justices was being manipulated. Seemed no one thought that was very important. Actually it didn’t seem that way, it was that way. There should have been a whole lot of hollering and legal maneuvering because, but they were doing was never written in any law or regulation.
Slothful, unreactionary and ignorant. Those justices should have been appointed by the president regardless of receiving congressional blessing. That way, you can have a good old-fashioned court battle. Like I said, since that laziness and laissez-faire literally destroyed government, the genie is not going to be put back in the bottle. It’s like opening the barn door but the barn burned down first with all the horses inside.
One last chance to declare a clear and present danger, a national emergency, and suspend habeas corpus and the Congress. This is within the rights of the president. And if this current president does not take advantage, then the next one, will absolutely do that. Especially if that president’s edict s is not abided by.
So you got one more chance, and I will bet, but just as the hand ringing and thumb twiddling seemed to be a liberal pastime, It will be brought to the fore, One more time! And then, we will hear more babble and blather on the situation, you won’t be able to locate a spine in the netload! Well, maybe Bernie Sanders lol!
I agree with Peggy’s comment and thank you Todd for sharing info on the Loper Bright case. The Federalist Society is pure evil!
there is a open hole where the public stands. the right side of DC has only conned its followers like falwell to believe anything they preach. the left designed a wall that is full of holes,they want to believe we will follow,but gave little in the whole on what their intentions were. Since the term headline news, most anyone regards the news as only the headlines. this blog is a needed airing out of both sides. unless the people buckle down and get some,er life.
the same ol crap is spewed identically every news minute of everyday. theres time to make time like a Michael Moore like docus. unless its majority educated to the masses, then it loses the very impact of WTFs. I find little in the news in any genre that explains why and how and who. is just all a shoot from the hip of too damn boring to understand.one sided with,little to show how it will affrect everyone over the few. (my opinion,but im looking through a hole in the actual fence. ) I enjoy the blog here and its donations to the understanding of the daily subjects. but unless theres more of a mainstream blog that doesnt take a app or a social media account to enjoy it,then it becomes moot. im here because of the freedom to not cage myself to understand it. the whole of the system is the majority,and its obvious that its become a society that is living in a dream world of mixed realities, and few understand or takes time too..the hired (gerrymandered vote)con man is now the game preacher,, is a scumbag who has become the godfather of the dead end to democracy. and we listen as the nation goes asleep to all the static its producing while the people get the up and coming shaft. we better find a way to hold hands and make the change. hitler and stalin are now the gods for the corprate political party of both sides.ill be refering to trump and his lackeys as hitler and stalin. ya gotta start shoveling to the beat of the masses.
Todd:
we need a tax law that takes back what the millionaires/billionaires have claimed off the working persons butt. explained in detail how America would be better off with a economic state of main street over wall street. get ready for crypto scam 2.0. its following the real estate scam of 2.0 trumps buddies renewed crap is only allowing this to again to ballon into a failure,and of course we the people will be the losers. fact is, its another way to lock up cash and the local flow of money out of main streets economy,and you may never see it again like 2008. but ask, who really got that money..people like mnuchin.
Trump and Mitch McConnell knew that SCOTUS Justices who are into Bibical Mythology are not able to switch gears to word by word analysis of the Constitution and arguments over challenged circumstances.
A.I. Would have been a better choice.
I agree, Jack!
Surprisingly, Steven Mnuchin was the first person to step forward once Joe Biden signed the TikTok ban, saying he was putting together investors to buy the US version of the social media app from the parent company. We all know he’ll give the Intelligence Community all the back doors into the app as they want. He’ll also adjust the algorithm to make sure anti-genocide and BDS disinvestment content is diminished to the point that nobody sees it.
Until the working class and the DP grow a set of brass balls (which I don’t expect will happen), the oligarchy will continue trampling all over the people and send them the bill for it – pouring salt into the wound they create.
My dear friend and soulmate. I have to disagree. I work with tax regulations every day of my career. Under Chevron, the reg writers, many of whom are not as intelligent and objective as people might believe, were beyond the reach of law. I am glad to see the courts have the ability to hear challenges.