Beneath the loud roar of populism, there’s a quiet revolution happening in American government, led by the Supreme Court—which just executed a massive power grab many years in the making.
This court has made headlines and history with two recent decisions you may have heard about: Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, and Trump v. United States, granting the president absolute immunity for official acts.
But there’s a third case you should know about, because it will change how our government actually operates.
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The details in Loper Bright Enterprises v. Raimondo aren’t so important, but here’s a recap. It’s a David-and-Goliath setup: in one corner, local, small-scale herring fishermen from New Jersey. In the other, the National Marine Fisheries Service, or Big Brother.
The fishermen challenged a NMFS regulation which required them to pay for a government observer to ride onboard their vessel. Though the fishermen were reimbused, for me it’s hard not to side with them on this one, just as the court did.
But ask yourself: How did this get to the Supreme Court? Are herring really top of mind?
What’s beneath the surface is far more… fishy. ;)
It was the perfect setup. Conservative legal activists have been plotting for years, waiting for their moment. With the right set of facts and 6-3 majority on the bench, they backed the fishermen’s case, and the Roberts Court executed the master plan.
In Loper, Chief Justice John Roberts, writing for the majority, declared the death of decades-old precedent, a legal doctrine known as “Chevron deference” (named for the 1984 case Chevron v. NRDC). For decades, Chevron deference shaped the inner workings of our government. Here’s how.
Let’s say Congress writes a law—call it the Clean Air Act. The act creates the Environmental Protection Agency (EPA), authorizing it to regulate air pollution. It gives many specific instructions for what to do, but intentionally leaves ambiguity in its language to allow the agency to fill the gap down the line, knowing the issues involved are fact-intensive and scientific.
Then, the EPA issues regulations like miles-per-gallon requirements for cars, permitting for oil and gas drilling, pollution controls for power plants, etc. When a new technology comes along, the agency updates its rules accordingly.
One day, big business challenges that rule in court, arguing the EPA is violating its mandate from Congress, just like the fishermen did in Loper. No matter the specific regulation in question, the analysis depends on an interpretation of the statutory language in the act and Congressional intent.
But the outcome will be determined by a different variable. Who should decide? Should six unelected life-term justices decide? Or should the EPA, part of the executive branch, answerable to the democratically-elected president, staffed with scientists and experts, be the one to do it?
Well, for the last 40 years, under Chevron deference, courts have defered to agencies when there is ambiguity in the law. Why? Because agencies are better equipped to answer specific technical questions than judges are. Who would you rather write rules to regulate AI, a judge or a computer scientist?
Conservative legal activists have been after Chevron for years. They tell a different story: For them, federal agencies are a grotesque modern phenomenon, the root of all our problems. The administrative state has expanded too much, they’ll say, and it was better in the 1930s, before we had any of it.
It’s the same attitude that Trump and others project in politics and media; hating the government has never been more popular. Among the public, confidence in institutions is at an all-time low across the political spectrum. Trump’s message is consistent, if anything: “It’s a disaster…” “They don’t know what they’re doing…” “We’re being laughed at…” Other fringe candidates parrot the same language. Vivek Ramaswamy has often described those working in government as a “fringe minority that hates America” as he campaigns to end affirmative action and federal initiatives on climate change and renewable energy. RFK Jr’s entire campaign is forged on a myth that the federal government used to love us in the ’60s, but now is deliberately trying to poison our food and hide the truth from the public.
All these guys tell the same story: It’s the government’s fault, just let me handle it.
The Supreme Court used different language, but their message is the same. By getting rid of Chevron, the six unelected justices granted themselves the power to write rules and regulations meant to protect public health and safety. As Justice Kagan wrote in dissent: “It is now ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris… The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education… In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”
Thanks, Jack—now I know things are worse than I thought, but what should I do?
Anytime, and here’s my plan:
First, stay positive—the Olympics are soon!
Second, remember that federal agencies do amazing things. NASA is a federal agency, and the EPA is why we don’t have smog (everywhere, at least) or acid rain.
Third, vote for candidates who believe in the federal government’s capacity to help people and make life better, and stop listening to leaders who tell you how bad everything is. If we’re going to solve the problems of tomorrow, we have to start believing we can.