[The Court has spent the last several years claiming the other two
branches’ powers for itself.]
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A NEW SUPREME COURT CASE SEEKS TO MAKE THE NINE JUSTICES EVEN MORE
POWERFUL  
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Ian Millhiser
May 2, 2023
Vox
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_ The Court has spent the last several years claiming the other two
branches’ powers for itself. _

Future Justice Neil M. Gorsuch laughs at a senator’s joke as he
testifies before the Senate Judiciary Committee on his nomination to
be an associate justice of the US Supreme Court, March 21, 2017. ,
Mandel Ngan/AFP via Getty Images

 

The Supreme Court announced on Monday that it will reconsider one of
its modern foundational decisions, _Chevron v. National Resources
Defense Council_
[[link removed]]_ _(1984),
which for decades defined the balance of power between the federal
judiciary and the executive branch of government.

_Chevron _established that courts ordinarily should defer to
policymaking decisions made by federal agencies
[[link removed]],
such as the Environmental Protection Agency or the Department of
Labor, for two reasons: Agencies typically have far greater expertise
in the areas they regulate than judges, and thus are more likely to
make wise policy decisions. And, while federal judges are largely
immune from democratic accountability, federal agencies typically are
run by officials who serve at the pleasure of an elected president —
and thus have far more democratic legitimacy to make policy choices.

Nevertheless, next term the Court will hear a case, _Loper Bright
Enterprises v. Raimondo_
[[link removed]],
which explicitly asks “whether the court should
overrule _Chevron_.” In the reasonably likely event that the Court
does overrule this seminal decision, that would mean the death of one
of the most cited decisions in the federal judiciary — according to
the legal database Lexis Nexis, federal courts have
cited _Chevron_ in over 19,000 different judicial opinions.

Indeed, _Chevron_ is arguably as important to the development of
federal administrative law as _Brown v. Board of Education_
[[link removed]] (1954) was
important to the development of the law of racial equality.

And a decision overruling _Chevron _would also make the United
States far less democratic. One of the Supreme Court’s most
consequential projects in the last several years, a project that took
off after former President Donald Trump remade the Court with three
appointees, has been concentrating authority over federal
policymaking within the Court itself
[[link removed]].
This project necessarily shifts power away from the other two
branches, whose leaders are elected, and to the unelected members of
the federal judiciary.

The Court has already taken a major leap toward
overruling _Chevron,_ although it is still technically good law.
Many of its recent decisions regarding federal agencies’ power to
set policy turned on the so-called “major questions doctrine
[[link removed]],”
a judicially created doctrine that traces back to a 2000 Supreme
Court decision [[link removed]],
but that became a central force in the Court’s administrative law
decisions during the Biden years. This doctrine effectively permits
five justices to veto any action by a federal agency that touches upon
a matter that those five justices deem to be a matter of “vast
‘economic and political significance.’”

But, while this major questions doctrine gives the Court a veto power
over executive branch policymaking decisions it deems too
significant, _Chevron_ has largely prevented lower court judges from
micromanaging the sort of routine, and often highly technical,
regulatory decisions that the government makes all the time —
questions like how much nitrogen may be discharged by a wastewater
treatment plant
[[link removed]],
or how to conduct hearings that determine which coal mine workers are
entitled to certain disability benefits
[[link removed]].

Without _Chevron_, every one of these complicated questions could
become the subject of protracted litigation, presided over by judges
who know little or nothing about nitrogen pollution, black lung
disease, or any of the myriad other areas where specialized agencies
have considerable expertise.

The Supreme Court’s war on federal regulation, briefly explained

Many federal statutes announce a broad policy goal, then delegate to
a federal agency
[[link removed]] the
job of implementing this goal through a network of binding
regulations. The Clean Air Act, for example, states that certain power
plants must use the “best system of emission reduction,” then
delegates to the EPA the authority to determine what this system is
given the current state of emissions-reduction technology. Other
federal statutes permit agencies to determine, within certain
guideposts set by Congress, which vaccines must be covered by health
insurers
[[link removed]],
or which workers are eligible for overtime pay
[[link removed]].

For many decades, decisions like _Chevron_ established that courts
should largely stay away from these kinds of policymaking decisions by
federal agencies, and the idea that courts should defer to expert
policymakers within these agencies used to enjoy broad bipartisan
support
[[link removed]]. _Chevron_ was
a unanimous decision (although several justices were recused from
hearing the case).

It is no coincidence that the Court’s right flank united behind
deference to federal agencies in the mid-1980s, when President Ronald
Reagan was in office and deregulation was ascendant. During the Reagan
administration, decisions like _Chevron_ required left-leaning
judges to keep their hands off of the Republican Party’s plans to
slash regulation. And many of the decision’s most vocal defenders
were staunchly conservative judges, including Justice Antonin Scalia,
who predicted in a 1989 lecture that “in the long
run _Chevron_ will endure and be given its full scope” because it
“reflects the reality of government, and thus more adequately serves
its needs
[[link removed]]”
than the alternative.

But this conservative consensus in favor of judicial restraint ended
about the same time that Barack Obama moved into the White House. For
much of the Obama years, the conservative Federalist Society’s
annual conference became a showcase for various plans to slash
federal agencies’ power and shift authority over regulation to the
judiciary
[[link removed]].

Recall that _Chevron_ is grounded in two observations
[[link removed]] about
why judges should typically defer to an agency’s policymaking
decisions. The first is that “judges are not experts” in the kind
of hyper-technical questions that often come before federal agencies.
So, if we give too much regulatory authority to judges, we’re going
to wind up with a very poorly governed nation.

Meanwhile, _Chevron_’s second concern is grounded in democracy.
“While agencies are not directly accountable to the people,” the
Court said in _Chevron_, agencies answer to a president who is
accountable to the voters. And so “it is entirely appropriate for
this political branch of the Government to make such policy choices
[[link removed]].”

_Chevron_, in other words, recognized that agencies will sometimes
need to make politically controversial decisions, such as how
aggressive they should be in fighting climate change
[[link removed]],
or how the government should encourage people to get vaccinated
against Covid-19
[[link removed]].
And the Court concluded in 1984 that it was best for these decisions
to be made by informed and politically accountable officials.

This later aspect of _Chevron_, the respect for democratically
accountable decisions over decisions made by lawyers with lifetime
appointments, has largely been abandoned by the Supreme Court’s
current, Republican-appointed majority. One of the conservative legal
movement’s greatest post-Obama triumphs is the “major questions
doctrine
[[link removed]],”
which holds that courts should cast an especially skeptical eye on any
agency action that concerns matters of “vast ‘economic and
political significance.’”

The Court has applied this doctrine haphazardly. It handed down two
decisions regarding vaccination
[[link removed]],
for example, that are difficult to reconcile with each other — the
first determined that a vaccine mandate that applied to 84 million
workers does involve a major question, while the second seemed to say
that a mandate which applied to only 10 million workers does not
involve a major question. Similarly, at one point the Court struck
down a series of environmental regulations that never took effect, and
that very well might have done nothing at all if they had gone into
effect
[[link removed]],
on the grounds that they concerned a matter of vast economic and
political significance.

In practice, in other words, it appears that the Court is willing to
strike down regulations that have a good deal of “political
significance” even if those regulations have little, if any,
economic significance. That’s the opposite of _Chevron_, which
called for courts to defer to the political judgments of executive
branch officials.

But the Court has not yet fully repudiated _Chevron_’s other
argument — that it is better for policy experts to make policy, and
not judges. And that’s where the _Loper Bright_ case could have
its biggest impact.

_Loper Bright_ is primarily a case about small, technical decisions
that judges know little about

The specific policy at issue in _Loper Bright_ is not something that
many people who don’t own fishing vessels are likely to care about:
It involves whether the National Marine Fisheries Service has the
authority to require the commercial fishing industry to pay for some
of the costs of placing observers on fishing vessels
[[link removed]] “for
the purpose of collecting data necessary for the conservation and
management of the fishery.”

The fishing industry plaintiffs in _Loper Bright_ do not claim this
question, of who pays for federal monitors on fishing vessels,
involves a matter of such great economic or political importance that
courts should veto it under the major questions doctrine. Instead,
they question a lower court’s decision to defer to the Fisheries
Service’s determination that some of these costs should be paid by
the industry — a decision that was rooted in _Chevron_.

_Loper Bright_, in other words, involves the kind of low-stakes
decision by a federal agency that rarely becomes a matter of great
political controversy, and that often goes unnoticed except by federal
regulators and the industries that they regulate. Taken on its own, it
really doesn’t matter all that much whether the federal government
or the fishing industry pays for these monitors.

But, taken in the aggregate, the many low-stakes regulations handed
down by various federal agencies are tremendously impactful. The Code
of Federal Regulations stretches across approximately 200 different
volumes
[[link removed]],
and most of the rules contained in this code deal with relatively
uncontroversial matters like fishing monitors, nitrogen emissions by
wastewater plants, or who is eligible for black lung benefits.

Under _Chevron_, courts will typically tell a party that objects to a
federal regulation to take it up with the agency that promulgated
that regulation
[[link removed]].
That doesn’t mean that these parties are powerless — federal law
ordinarily requires agencies to seek input from regulated industries
and individuals before handing down a new regulation, and those
industries are free to lobby the agency to change existing rules.
But _Chevron_ does mean that the final decision on matters of policy
will be made by policy experts and not by judges.

Should the Supreme Court overrule _Chevron_, or even if it should
significantly weaken it, that could introduce chaos into the entire
federal government. It would mean that every time the EPA tweaks an
emissions standard, every time the Occupational Safety and Health
Administration changes which kind of safety goggles certain workers
must wear, or every time health regulators determine that a particular
vaccine should be covered by health insurers, that this decision may
be the subject of protracted litigation.

Worse, regulated industries are likely to shop around for friendly
judges
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may have an axe to grind against the current administration. And, in a
world without _Chevron_, even longstanding regulations could be the
subject of litigation. No one will know what the rules are until
judges with no expertise on the relevant subject matter weigh in.

That is an inefficient way to run a government, and it is a bad way to
run a country. Federal policy should be set by people who know what
they are talking about.

_IAN MILLHISER [[link removed]] is a
senior correspondent at Vox, where he focuses on the Supreme Court,
the Constitution, and the decline of liberal democracy in the United
States. He received a JD from Duke University and is the author of two
books on the Supreme Court._

_VOX was founded in 2014, with the mission to explain the news. We
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* Supreme Court
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* Separation of Powers
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* Chevron
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* regulation
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* federal government
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