[ With three decisions this month, the Court could break the back
of Washington’s authority over regulation. Then, the battles over
some of America’s biggest issues shift to the states.]
[[link removed]]

THE SUPREME COURT COULD FOSTER A NEW KIND OF CIVIL WAR  
[[link removed]]


 

David Bernstein
June 14, 2022
Politico
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ With three decisions this month, the Court could break the back of
Washington’s authority over regulation. Then, the battles over some
of America’s biggest issues shift to the states. _

If Roe v. Wade goes down, and Chevron v. National Resources Defense
Council gets rolled back, let the fighting begin., Gemunu
Amarasinghe/AP Photo

 

The Supreme Court’s expected overturning of _Roe v. Wade_ has
captured all the news attention, but the Court could well lay the
groundwork for even larger changes in American governance before it
adjourns for the term — and trigger a state-by-state battle for the
new shape of laws and American civic life.

If _Roe v. Wade_ is overturned, activists on both sides are already
girding for full-force political battles over state abortion access,
possibly followed by similar struggles over contraception, and even
same-sex marriage.

Beyond its decision on abortion, however, the Court is expected to
rule in no fewer than three cases this month that could open up many
more fronts for this state-by-state conflict, by severely limiting
federal agencies’ authority to promulgate regulations.

They all sound dry, but their implications could be sweeping. The
first two cases involve Medicare payments: _Becerra v. Empire Health
Foundation_ and _American Hospital Association v. Becerra. _The
third case is about the Clean Air Act: _West Virginia v.
Environmental Protection Agency._

On the surface, they address typical Supreme Court arcana. One of the
Medicare cases involves parsing a paragraph of Medicare law that
Justice Stephen Breyer, in oral argument last November, admitted he
had to read “two or three times” to understand. The West Virginia
case asks whether paragraph 7411(d) of the Clean Air Act applies only
to actions that power plants control at their facilities, or beyond
those physical boundaries.

But there’s a reason these cases are being left to the end of the
term — typically when the Court drops its most newsworthy decisions.
They all have a bearing on one of the basic responsibilities of the
government in Washington: How much latitude federal agencies have to
interpret, and then enforce, the laws that Congress passes.

Whenever the Supreme Court undercuts an issue at the national level,
as it did by weakening voting rights law
[[link removed]] in
2013, the warfare shifts to the states. If the Court significantly
rolls this federal authority back — and there are signals it will
— the implications could start to shift the entire locus of American
power, and the country will be dealing with the fallout for years.

A GREAT DEAL OF WASHINGTON’S POWER rests on a fact you don’t
learn in civics textbooks: When Congress passes new laws, those laws
are filled with instructions that can be vague, or debatable, or even
self-contradictory. Laws need to be reapplied to new circumstances
over time.

Who gets to do that? For decades, courts have generally allowed
federal agencies to make those calls — a policy made explicit in the
1984 _Chevron v. National Resources Defense Council _decision. That
case also involved the Clean Air Act, with the ambiguous phrase at
issue being “stationary sources” of air pollution. The Democratic
administration of Jimmy Carter had interpreted that expansively; when
Ronald Reagan’s administration later redefined the term more
narrowly, environmental advocates asked the courts to not let them.

Under the reasoning laid out in the _Chevron_ decision, courts
should generally defer to federal agencies — in that instance,
Reagan’s Environmental Protection Agency — when determining if a
regulation is warranted under that agency’s statutory authority.
Unless the answer is clearly no, courts should assume that the agency
knows its business better than what conservatives used to call
“unelected activist judges.” Since then, this principle has become
known as the _Chevron_ standard, or “_Chevron_ deference.”

Increasingly, however, SCOTUS and lower courts have been taking a
different view — as Trump-appointed judge Kathryn Kimball Mizelle
did when she overturned the Centers for Disease Control and
Prevention’s travel mask mandate last month. They, and a chorus of
conservative advocates, say that judges should decide, not defer. So
Mizelle, for example, decided that mask mandates do not “prevent the
introduction, transmission, or spread of communicable diseases,” as
the surgeon general is authorized to do under the 1944 Public Health
Service Act.

Commentators on both left and right have, at various times, found
fault with the _Chevron_ standard — often depending on whether
it’s a Democratic or Republican administration putting out the
regulations. (Or, whether federal courts are filled with Democratic-
or Republican-appointed judges.) The original _Chevron _case had
liberals demanding judicial precedence over Reagan’s agencies.
Conservative Justice Antonin Scalia was a prominent advocate of
Chevron deference
[[link removed](1989)].

But in recent years, conservatives have made the demise
of _Chevron_ deference a priority
[[link removed]],
as a way of limiting what they see as the runaway growth of the
regulatory state.

Justices Neil Gorsuch, Clarence Thomas, Brett Kavanaugh and Samuel
Alito have all expressed opposition to _Chevron_ in various ways,
and many court observers believe that the conservative majority will
soon overturn, or at least redefine, that precedent.

Medicare reimbursements and a particular EPA rule are just the tip of
a mountainous quantity of federal regulations, old and new, that could
be challenged if, as many expect, the Court uses those cases to
announce the death of _Chevron _deference.

[Abortion-rights activists protest.]

If Roe v. Wade is overturned, activists on both sides are already
girding for full-force political battles over state abortion access,
possibly followed by similar struggles over contraception, and even
same-sex marriage. | Alex Wong/Getty Images

IF THE RULINGS IN THESE THREE CASES DEFINITIVELY GO THEIR
WAY, there’s good reason to believe that businesses and
conservative activist organizations will see it as a door flung wide
open — an opportunity to chase their particular regulatory bugbears,
seeking out right-wing judges on district courts, trying to chip away
at the scope of federal agencies’ work.

Craig Green, professor of law at Temple University’s Beasley School
of Law, expects that their potential targets could include a whole
host of legal protections: on workers rights, consumer protections,
environment, health care and much more. Some of those challenges are
in courts already; others are just waiting for a green light in the
form of a Supreme Court change to _Chevron._

This isn’t just an obscure point of administrative law: A study last
year found that 99 percent of major federal laws include delegation of
rule-making to agencies, leading Amherst College political science
professor Austin Sarat to warn recently that reducing those
agencies’ ability to interpret statutes is “a frontal assault on
the federal government’s ability to promote the health, safety and
welfare of citizens
[[link removed]].”

Not all of those challenges will be successful. But, Green says, many
of those that are will remove federal safety nets, leaving it up to
individual states to debate their own way forward. That already
happens on greenhouse emissions, gun laws, minimum wage and, of
course, Covid mitigation. That could soon extend to almost any
activity that, until now, has been handled uniformly by the federal
government. Prepare for death of civility by a thousand cuts.

Green puts it bluntly: “Defeating _Chevron_ weakens the federal
government.” And as states respond differently, Green says, “it
produces a schism among different states.”

Americans have seen these regulatory schisms in force during the
pandemic, as different jurisdictions issued different emergency
orders, and practices varied across every state line — and governors
were protested as either tyrants or deathmongers accordingly.

In fact, the Supreme Court struck down two pandemic-related rules
without directly upending _Chevron_: ruling that OSHA could not
implement a “vaccine or test” mandate for large employers; and
that the CDC could not extend its eviction moratorium.

Those decisions, both overruling federal agencies, used another avenue
to skirt _Chevron _deference — part of a trend toward
“antideference,” argues Nathan Richardson, professor of law at the
University of South Carolina School of Law. They relied on “major
questions doctrine,” which allows judges to, essentially, scrap
agencies’ ability to regulate at all without explicit Congressional
instruction when the issue is of great economic or political interest.

Great interest being in the eye of the beholder, this doctrine could
allow judges — any federal judges, not just those on the Supreme
Court — to bypass _Chevron_ pretty much any time they dislike a
regulation.

“Everything from food and drug standards to climate change is
getting greater scrutiny from the Court,” Richardson says. “The
entire OSHA office is arguably unconstitutional” if you take the
doctrine far enough, he says.

On that front, Richardson has his eye particularly on _West Virginia
v. EPA_: In seeking to strike down Affordable Clean Energy standards,
West Virginia is explicitly making a major questions doctrine
argument. It’s an opportunity for the Court to define just how far
to take it.

MUCH OF THIS LOOMING CONFLICT COULD BE AVOIDED if Congress was
capable of passing legislation to better define what it wants agencies
to do, and how. Or, passing laws at all.

For example, after the death of 80 people and wounding of hundreds
more in the 2017 Las Vegas massacre, Congress could have banned
“bump stocks,” which allow for more rapid firing of semi-automatic
rifles. It did not. That led to debates in state legislatures from
coast to coast, with nearly a dozen states adopting bump-stock bans,
but others failing to do so.

Those state-by-state clashes ended when the Trump administration,
through the ATF, banned bump stocks through regulation.

Two challenges to that federal bump-stock ban have now been appealed
to the Supreme Court, both arguing that the ATF does not have the
authority to issue that regulation. If the ban is overturned, the
fight will then move right back to state houses nationwide.

Advocates will seek bump-stock bans in the 39 states that still lack
them, while gun rights groups will seek repeal of bans now in place.
Already, Florida’s ban is being challenged in state court.

The same could happen with the Biden administration’s recently
announced “ghost gun” ban [[link removed]]. And
gun control is just one example of the current state of congressional
inaction, which ranges from minimum wage to climate change.

In that atmosphere, it largely falls to agencies to adapt federal
regulations to a fast-changing world. And adoption of an
“antideference” standard in courts would add a significant choke
point hampering federal action — just as the Supreme Court has
demonstrated Congress’s inability to settle the abortion or voting
rights issues with national laws.

If _Roe_ goes down, _and_ _Chevron _gets rolled back, let the
fighting begin.

* Supreme Court
[[link removed]]
* government regulation and safety
[[link removed]]
* Supreme Court rulings
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]

Manage subscription
[[link removed]]

Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]