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S. COURT MADE REGULATING CORPORATIONS NEARLY IMPOSSIBLE  
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Anthony Grasso
June 28, 2024
The Progressive
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_ A decision about fishing regulations could lead to a massive
rollback of progressive policies across the board. _

Fishermen haul up a full net of pink and chum salmon in Chatham
Strait, Alaska., SkeenaWild Conservation Trust

 

On June 28, the Supreme Court published its decision in the case
_Loper Bright Enterprises v. Raimondo_
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attracted as much attention as some of the Court’s recent spate of
controversial rulings, it revoked a long held precedent and will limit
government agencies’ ability to do their jobs. 

_Loper Bright_ deals with seemingly mundane questions of commercial
fishing regulation. Current federal law requires fishing companies to
allow National Marine Fisheries Services (NMFS) monitors to board
their boats for regulatory purposes. The NMFS, however, has
interpreted federal law to create a new rule requiring the industry to
subsidize this monitoring at a cost of roughly $700 per day. Loper
Bright Enterprises sued, claiming that the NMFS created the rule based
on an overbroad interpretation of the federal law. In a 6-3 vote split
along ideological lines, the Court sided with Loper Bright in a
majority opinion authored by Chief Justice John Roberts. 

The decision will have a far greater impact than simply settling a
dispute over arcane fishing regulations. In the case, the Court
upended the doctrine of Chevron deference
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American administrative law for four decades. Established in the 1984
case _Chevron v. Natural Resources Defense Council_
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instructed judges to defer to federal agencies’ interpretation of
ambiguous laws, provided their interpretations were reasonable. This
doctrine allowed agencies to implement the law without fearing
judicial second-guessing on ideological grounds, enabling
administrators to provide efficient and expert-driven governance. But
in the majority opinion, Roberts wrote that “Chevron is
overruled,” describing the precedent as a “judicial invention that
required judges to disregard their statutory duties.” He added that
without Chevron, “Courts must exercise their independent judgment in
deciding whether an agency has acted within its statutory
authority.” 

_Loper Bright_’s repercussions for American democracy are profound,
sweeping, and deeply troubling.  

First, _Loper Bright_ severely hampers government functionality by
limiting the government’s ability to govern. Congress creates
regulatory bodies precisely because it recognizes that it cannot
anticipate every wrinkle in policy implementation across the vast
array of issues on which it legislates. Consequently, federal agencies
are staffed by experts and civil servants who can use their scientific
and professional expertise to adapt, interpret, and enforce statutory
law to function in a complex world. 

But in dismissing the value of agency expertise, Roberts wrote for the
majority that “_Chevron_’s presumption is misguided because
agencies have no special competence in resolving statutory
ambiguities. Courts do.” Without Chevron deference, agencies will be
paralyzed by constant judicial scrutiny unless Congress has explicitly
anticipated and addressed in legislation every possible scenario and
decision regulators may be confronted with—a tall and essentially
impossible order. 

Second, _Loper Bright _undermines democratic self-governance.
Conservatives insist that the administrative state’s very existence
undermines democracy
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by elevating unelected bureaucrats to make important policy decisions
in place of elected leadership and disrupting the national system of
checks and balances. Under this logic, _Chevron_’s rejection
restores balance by placing responsibility for policymaking with an
elected Congress. But rather than empowering elected legislators,
_Loper Bright_ shifts power to an unelected judiciary. 

In abandoning Chevron deference, the Court has retained the 1944
precedent of _Skidmore v. Swift and Company_
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decisions as guides for judicial interpretation that judges can rely
on or reject at their discretion. _Skidmore _states that agency
interpretations reflect “a body of experience and informed
judgment” that are “entitled to respect” from judges. 

But as Justice Elena Kagan wrote in her dissent, “respect” is an
imprecise standard permitting judges to arbitrarily grant or withhold
deference as they see fit. Additionally, _Skidmore_ gives judges, who
lack the industry-specific expertise of administrative staff,
extraordinary leeway in interpreting laws governing complex aspects of
American economic and social life. Kagan noted that the majority
dismissed the valuable scientific and technical expertise agencies
exercise in interpreting and enforcing statutory law, writing that
“agencies have expertise in those areas. Courts do not.” 

The result of ending _Chevron _will be a surge of litigation
challenging regulatory rules and decisions, overwhelming lower courts
and allowing judicial preferences to regularly override expert agency
decisions. Hampering expert administrators by transferring their power
to unelected judges without policy expertise will encourage judicial
forum shopping
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as plaintiffs seek judges sympathetic to their positions. None of this
can be reasonably understood as an expansion of democratic
self-governance. 

Third, corporate interests are among the biggest beneficiaries of
Chevron’s demise. Corporations linked
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to influential networks like those of Charles Koch and Leonard Leo
have long campaigned against the regulatory state as an unaccountable
and power-hungry “deep state,” and the Koch and Leo networks have
connections to the lawyers challenging Chevron in _Loper Bright_. The
end of Chevron deference represents an enormous victory in their war
by undermining the government’s ability to enforce regulations that
protect public welfare. 

As I write in my forthcoming book
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_Dual Justice: America’s Divergent Approaches to Street and
Corporate Crime_, corporate crime often evades prosecution in the
United States in large part because lawmakers have historically
delegated most responsibility for governing corporate misconduct to
the administrative state. The American government primarily relies on
the regulatory interventions of administrative agencies to manage
corporate wrongdoing rather than criminal prosecution. 

As a result, the United States has developed an anemic capacity to
prosecute corporate wrongdoing, leaving regulatory enforcement as the
government’s primary weapon for protecting citizens from bad actors
and corporate malfeasance. Discarding Chevron radically undercuts the
government’s already limited ability to safeguard the public from
bad actors and corporate malfeasance by making it easier for corporate
interests to challenge regulatory enforcement actions against their
harmful behavior. 

Fourth, and finally, the demise of Chevron deference threatens
progressive policies across the board. For forty years, the federal
government’s more than 400
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independent commissions, and executive branch departments have been
able to rely on scientific and professional expertise to fill in the
gaps of ambiguous legislation without worrying about judicial
interference. Without Chevron deference, corporations will likely be
emboldened to initiate challenges that could dismantle protections for
workers, consumers, and the environment that have been secured through
administrative action. Progressive initiatives in workers’ rights,
healthcare access, civil rights, fair pay, safe food and consumer
goods, vaccine regulations, abortion drugs, student loan forgiveness,
clean air and water, and more are often advanced through the
administrative state and can now be subject to increased judicial
questioning through a new avenue. 

The _Loper Bright_ decision represents a fundamental shift in the
balance of power between branches of government and could lead to a
significant and alarming rollback of progressive policy achievements
of all kinds.

Anthony Grasso is a professor at Rutgers University-Camden whose
research focuses on American politics, law, and inequality. His book,
Dual Justice: America’s Divergent Approaches to Street and Corporate
Crime, will be published this upcoming fall.

A voice for peace, social justice, and the common good! Since
1909, _The Progressive _magazine_ _has aimed to amplify voices of
dissent and voices under-represented in the mainstream, with a goal
of championing grassroots progressive politics.

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