Imperial Supreme Court | Regulatory review

The US Supreme Court decision of Loper Bright Enterprises v. Raimondo, which canceled the 40-year-old man Chevron v. Natural Resources Defense Councilwill not affect American lives as harshly and immediately as the 2022 rejection decision Roe v. Wade.

But like Dobbs v. Jackson Women’s Health Organization, Loper Bright has the potential to fundamentally transform major aspects of the health, safety and well-being of most Americans. This potential is especially true when viewed alongside other major agency power cases that the Court has ruled in recent terms—and indeed in recent weeks—that have stripped agencies of power and transferred that power directly to federal courts.

In that term alone, the Court eliminated a key mechanism used by the US Securities and Exchange Commission (SEC) to enforce securities laws and imposed an important Environmental Protection Agency emissions standard based on, in the judge’s words Amy Coney Barrett, dissenting, an “Underdeveloped theory that is unlikely to succeed on the merits.”

Since 1984 Chevron decision came the doctrine of Chevron deference. Essentially, Chevron Deference allowed the agencies to use their expertise to determine how to implement laws passed by the U.S. Congress—laws designed to keep our air and water clean, our medicines safe and effective, and our securities markets safe from fraud and deceit.

The Supreme Court has now decreed that it, rather than agencies made up of individuals with deep subject matter expertise who answer to presidential appointees, will be the final arbiter of the meaning of every statute passed by Congress.

What does it mean to require agencies to take the “best” or “adequate” or “feasible” steps to reduce air and water pollution or keep jobs safe? While Chevron ordered courts to approach agencies when they brought their expertise to bear on such questions and gave reasonable answers, the Court will now decide for itself.

It will do so not armed with decades of experience in administering certain laws enacted by Congress, but with a lumbering, formalistic, contextual approach to reading statutory texts—informed by dictionaries and common law and Latin idioms, but not by reality from the field. of the issues Congress tries to address in the statutes it passes.

An error in one of this term’s opinions provided a stark illustration of the costs of the Court’s lack of expertise: in the case dealing with the Environmental Protection Agency—Ohio v. EPA— the published version of the majority opinion made five references to “nitrogen oxide,” commonly referred to as laughing gas, rather than to the “nitrogen oxide” compounds in question. The error was quickly fixed, but no agency official working to regulate this compound would have made such an error—and in many ways, that’s Chevronhis idea.

In a world without Chevron, the Court will rely not on expertise but on whatever tools it sees fit or whatever source of evidence appears in amicus briefs filed by fellow ideological travelers. That’s no exaggeration: It happened in June, when the Court relied on six diagrams and a GIF from the Firearms Policy Coalition’s brief to declare that bump stocks, which functionally turn semiautomatic rifles into machine guns, could not be prohibited by the Office. of alcohol, tobacco, firearms and explosives under a statute that prohibits machine guns.

Although they involve very different subjects, Loper Bright and Dobbs they have a lot in common. They stem from the same ideological project of conservative legal transformation and reflect similar hubris, recklessness, and retrograde constitutional vision. And both involve overturning precedents and changing the law in undemocratic directions while perversely claiming the mantle of democracy.

In upholding this type of reversal, both decisions show a total disregard for decisions made by previous Supreme Courts. The Dobbs Contempt of court against authors Roe v. Wade was palpable: the Court described roe as involving an “abuse of judicial authority”, he referred to his “flawed historical analysis” and called it “wrong from the start”.

Similarly, in Loper BrightChief Justice John Roberts suggested that unanimously in 1984 Chevron the opinion “grievously erred,” overturned the “statutory scheme of judicial review of agency action” and was always “unworkable.” For good measure, the opinion held that the Court’s subsequent changes to the original Chevron opinion turned “original two-step into a dizzying breakdance.”

Dobbs and Loper Bright they are also bound by their defensive insistence that democracy demands the results they achieve. The Dobbs The Court explained that in annulment roe, was merely returning “the question of abortion to the elected representatives of the people.” But it purported to bring back the issue of democratic process at the very moment when the Court itself blessed a variety of anti-democratic techniques. And the method Dobbs announced for identifying constitutional rights—a method closely tied to “history and tradition”—links today’s rights to a past in which many Americans were barred from participating in lawmaking.

Loper Bright it is equally undemocratic while claiming a democratic mandate. Its basic premise is one of judicial primacy—in the words of the Court, “agencies have no special powers in resolving statutory ambiguities. Courts do.” But the Court also suggests this rejection Chevron honors Congress as a democratically responsible political decision maker. In the Court’s statement, its role under both the US Constitution and the Administrative Procedure Act of 1946 is to independently interpret statutes, which allows the Court to “carry out the will of Congress.”

That reasoning echoes that of Judge Neil Gorsuch in a previous case that invalidated an Occupational Safety and Health Administration-era COVID-19 testing or vaccination mandate for large employers. In that case, Judge Gorsuch invoked democracy even more explicitly, explaining that the Court was only making sure “that the power of the national government to make the laws that govern us remains where Article I of the Constitution says it belongs — with the elected representatives of the people.” The Court, Justice Gorsuch insisted, would act to “prevent ‘government by bureaucracy from replacing government by the people.’

As this quote shows, the Court holds that it is undemocratic for agencies to take the lead in interpreting statutes passed by Congress, and that it is somehow more democratic for courts to do so. But the Court has it right back. A key premise a Chevron is that it is far more democratic for agencies than for courts to interpret ambiguous provisions in statutes enacted by Congress. In his words Chevron itself, taken up by the dissent of Judge Elena Kagan in Loper Bright, “While agencies are not directly accountable to the people, the chief executive is.” Agencies are best situated to resolve “competing interests that Congress itself either inadvertently failed to resolve” or intentionally left to be resolved by the relevant agency. As the Chevron The Court continued: “Federal judges—who do not have constituencies—have a duty to respect the legitimate political choices made by those who do.”

Loper Bright transfers enormous power to the courts and does not hide that: The opinion itself is a blade for the judiciary. But the Court’s reasoning also seems to cross even more dangerous ground. Minimizing the agencies’ democratic legitimacy and capitalizing on herself and a select few other institutions as the true loci of democracy has shades of former President Donald J. Trump’s populist rhetoric.

Contrast this with the Court’s deep skepticism of other sources of government power. These include agencies such as the Bureau of Alcohol, Tobacco, Firearms and Explosives, which, according to the Court’s account, banned bump stocks only under “tremendous political pressure” and while rejecting the agency’s “previous guidance”; prosecutors, such as those who used a federal anti-corruption statute against a former Indiana mayor Snyder v. United States—a case about expanding a federal law targeting public corruption; state supreme courts, such as the Colorado Supreme Court, which ruled that President Trump could not appear on the state’s ballot after engaging in insurrection; and administrative law judges at the SEC — Justice Gorsuch said that “the title ‘judge’ in this context is not quite what it might seem.”

Despising all these exercises of governmental power, Loper Bright significantly advances a key project of this Supreme Court—the expansion of the Court’s power and its corollary, disempowerment of other entities.

By arrogating to itself enormous new authority, the Court ensures that it alone will continue to make the most important decisions in our national life. And that is no way to run a democracy.