In Wednesday’s oral arguments, the right-wing legal world reached an inflection point it had been working towards for decades.
The 6-3 supermajority conservative Supreme Court got the chance to scrap Chevron deference, a pillar of agency power. Chevron deference is the principle that when laws are silent or ambiguous on the particulars of how they should be enacted, courts should let regulatory agencies and their experts fill in that gap, as long as their interpretation is reasonable.
Justice Neil Gorsuch, whose past writing formed the spine of the briefs for those fighting to hobble agency power, abandoned any pretense at neutrality Wednesday in even his earliest colloquies with the lawyers.
“Who decides?” Gorsuch asked, interrupting the lawyer opposing the government to better make his argument for him. “Is the judge persuaded at the end of the day, with proper deference given to a co-equal branch of government, or does the judge abdicate that responsibility and say, automatically, whatever the agency says wins?”
It’s not hard to tell where Gorsuch comes down, as he twists agency deference into a heads big, scary government wins, tails judges are hamstrung and “ordinary citizens” lose proposition.
Chevron has long been an obstacle to these right-wing forces’ efforts to unspool and defang regulation, to create an even friendlier legal environment for business. Unwinding it has been the driving thrust of the movement, the source of its endless funding and resources.
Gorsuch, son of a mother who boasted about eliminating Environmental Protection Agency regulations while she was the agency’s Reagan administration chief, is the perfect face for the nearly successful effort and served as its spokesperson during the oral arguments. With his abstract libertarianism, the justice maintained that Chevron means the government never loses — a surprise to those of us who have watched Biden agency actions from student debt forgiveness to power plant regulations fall at the hands of this Court. With Chevron in hand, Gorsuch waxed, the tyrannical government can run roughshod over Congress, judges and the “citizens” pitted against its might.
Flanked by his right-wing colleagues, many of whom were incubated in the same environments, Gorsuch is poised to lead the Court in overturning — or at least, fatally weakening — Chevron and fulfilling the promise for which they were chosen.
Think of the Little Guys
The right-wing justices strained credulity Wednesday in their argument that it’s the little guys who Chevron hurts, the everyday Americans who supposedly keep getting ensnared in an aggressive regulatory scheme.
“This is what niggles at so many of the lower court judges: the immigrant, the veteran seeking his benefits, the social security disability applicant, who have no power to influence agencies, who will never capture them and whose interests are not the sorts of things on which people vote,” Gorsuch bemoaned (switching out his earlier preference for the word “alien” for the more sympathetic “immigrant”). “I didn’t see a case cited — perhaps I missed one — where Chevron wound up benefiting those kinds of peoples.”
He added that the other side, which makes the argument “powerfully,” asserts that Chevron has a “disparate impact on different classes of persons.”
Again, he leaves out certain details. This case, for example, is nominally about federally mandated monitors on commercial fishing vessels to prevent environmentally damaging overfishing. The lawyers for that side made much of the thin margins in the fishing industry, the struggle for those blue collar workers to keep afloat. If that’s what this case was truly about, we would have heard much more about herring Wednesday and much less philosophical debate over agencies’ place in society.
This case, like all of those gunning for strong regulatory agencies, is backed by the much less pitiable interests of big business, powerful corporations who want to dump waste in rivers or underpay their workers without threat of government-inflicted punishment. These lowly, maligned fisherpeople are backed by the might of Koch Industries CEO Charles Koch. Lawyers working for the nonprofit he funds are arguing the case for free, hidden behind a shell law firm, according to New York Times reporting.
Gorsuch himself also has reported close and long-standing personal ties to an oil and gas billionaire who has given money to the Koch-funded right-wing nonprofit for whom these lawyers work.
The right-wing justices hit talking points that have grown very familiar to anyone who has listened to recent oral arguments.
Empowering agencies, they argued, shifts power to unelected agency staff from Congress, the people’s branch. If Congress had wanted to afford the agencies the option to interpret a given law in a range of possible ways, the lawmakers would have said so explicitly. This vein of argument has helped the conservatives spin up the major questions and nondelegation “doctrines”: the first of which demands a level of specificity rarely present in congressional delegations of power in matters of great “economic and political significance,” and the second of which holds that Congress can’t outsource its legislative responsibilities. In this Court’s hands, these largely made-up and embellished notions have become tools to beat back Obama and Biden administration actions the conservatives don’t like.
What Gorsuch and co. don’t say is that weakening agencies does not actually empower Congress. The legislature, hamstrung by the Senate filibuster, a polarized Congress and a lack of interest in policymaking on the right, can barely fund the government each year, much less pass a bill every time the Occupational Safety & Health Administration wants to tweak a factory workplace regulation or the Food and Drug Administration has to decide if a new product qualifies as a dietary supplement or a drug. It also lacks the expertise to do those things, given that much of what agencies do is highly technical. This is the reason justices devised Chevron in the 1980s — the recognition that neither Congress, nor the courts, had the ability and expertise to speak to all questions in American federal policy.
What went unsaid in Wednesday’s arguments is what a post-Chevron administrative state would look like. With a handicapped Congress and handcuffed agencies, the remaining branch — the judiciary — is itself the arbiter of what agencies can do.
“I’m worried about the courts becoming uber-legislators,” Justice Ketanji Brown Jackson said. “If we’re talking about a policy question — there are several reasonable meanings — why should courts make that determination? Couldn’t we be in a world where Congress intended for the agency to actually decide which choice is best?”
Gorsuch and his peers, completing the trifecta of disingenuousness, feigned great distress at the “chaos” Chevron had introduced into the legal system, as agency actions change based on which party currently holds the White House.
“The reality is — you say don’t overrule Chevron because it would be a shock to the system — but the reality of how this works is that Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in,” Justice Brett Kavanaugh said, talking over Biden administration Solicitor General Elizabeth Prelogar.
The justices seemed less interested in Prelogar’s recurring point, that overturning Chevron could reopen dozens of Supreme Court cases and thousands of lower court cases that rest on the judges showing some level of deference to agencies’ experts. Doing away with Chevron would also, she reminded the Court, not sweep away the many cases arising from statutory ambiguity, and would deprive judges of a useful tool for deciding them — which also serves as a check against judges acting in accordance with their own partisan preferences.
Jackson questioned the merits of “stability” itself.
“I suppose judicial policy making is very stable — but precisely because we are not accountable to the people and have lifetime appointments,” she said.
Whether Gorsuch’s bloodlust or Chief Justice John Roberts’ mealy-mouthed hand waving — the Court barely uses Chevron deference anymore, he said — the right-wing, decades-long quest to kill Chevron seems very near victory.
“The issue we’re deciding here is more like the countless policy issues that are going to confront this country in the years and decades ahead,” Justice Elena Kagan said. “Will courts be able to decide these issues as to things they know nothing about, courts that are completely disconnected from the policy process, from the political process and that just don’t have any expertise and experience in an area? Or are people in agencies going to do that? That’s what this case is about.”