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From today's Jay Kuo substack release:
A Power Grab by the Court
A case heard yesterday by the Supreme Court could end the administrative state as we know it and transfer regulatory power to unqualified judges.
Jay Kuo
Jan 18
Yesterday’s arguments before SCOTUS. Image by William Hennessy
Today I have something special for you. Professor and former Labor Secretary Robert Reich and I collaborated on a video, together with the folks at Inequality Media, for which I co-wrote the script. Our hope in these videos is to distill complicated legal and political matters and make them more accessible to ordinary citizens.
The subject matter of this video is a pair of cases that came before the Supreme Court yesterday challenging the so-called “Chevron Doctrine.” It’s admittedly a fairly wonky concept, but it has been the baseline for federal administrative law for 40 years. I learned about Chevron back in law school in the early 1990s. It is still taught today as established precedent, and there are over 17,000 cases that have relied upon it, including 70 Supreme Court cases.
The weight of precedent is, of course, not a bar to this extremist, activist Court. Based on yesterday’s oral argument, the conservative majority on the Supreme Court appears ready to overturn Chevron. Such a move would likely be one of the most consequential of this Court’s term, and that is saying something.
So, what would overturning Chevron mean? Let’s watch Prof. Reich on the subject:
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Back in 1984, Justice John Paul Stevens, in a unanimous decision (albeit with three justices recusing), wrote, “Judges are not experts in the field, and are not part of either political branch of the government.” Stevens later said of the opinion that it was “simply a restatement of existing law”—though the decision was by far his most consequential.
Conservatives back then (remember, this was during the Reagan years) believed that giving agencies instead of courts the power to interpret and implement ambiguous laws would be a good thing. Judges were too activist, they believed, and Reagan’s EPA had major regulatory dismantling to do. Those pesky liberal judges were thwarting many of their efforts. Forcing the courts to defer to the discretion of agencies handed more power to the White House, so they were fine with that.
But now that Republican presidents consistently have been losing popular elections, the shoe is on the other foot. Republicans might hold sway at the Supreme Court, but liberals control the “deep state” with all their fancy experts and experienced civil servants. So in the minds of conservative activists, it’s time for the courts to take back the power they once ceded.
As of yesterday’s arguments, it seemed pretty clear that there are least four conservative justices—Alito, Thomas, Gorsuch and Kavanaugh—who are prepared to end 40 years of established administrative law and seize the power to interpret laws back from federal agencies. Two other conservatives, Chief Justice Roberts and Justice Amy Coney Barrett, asked questions of both sides, but it would only take one of them to go along with overruling Chevron to undo 40 years of caselaw.
This is no small matter, by the way. As Justice Barrett asked, would this invite parties who lost in all those thousands of cases to re-litigate their claims today? And would corporations eager to find fault and ambiguity in the many laws around our environment, drug approval, food safety and securities proceed to file suit, after shopping for a judge who would side with them? As Solicitor General Elizabeth B. Prelogar argued, overruling Chevron outright would be an “unwarranted shock to the legal system.”
Justice Kavanaugh dismissed this concern. After all, he said, “shocks to the system [occur] every four or eight years when a new administration comes in, whether it’s communications law or securities law or competition law or environmental law.” This of course ignores the significant internal expertise of lower level agency officials, scientists and researchers who are non-partisan and who regularly make their recommendations based on the facts as they find them.
Justice Kagan cut to the heart of the problem in her remarks. “Agencies know things that courts do not,” she said, “and that’s the basis of Chevron.” She wondered who should decide whether something is a drug or a dietary supplement, the courts who have no expertise in this or an expert agency?
“It’s best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations,” Kagan said. “And, you know, judges should know what they don’t know.”
Justice Jackson built upon this in her remarks. “And my concern,” Jackson said, “is that if we take away something like Chevron, the court will then suddenly become a policymaker.”
Leading the charge against Chevron is Justice Gorsuch, who wrote in 2022 that the courts had read the doctrine too broadly and given too much deference to the agencies. After all, isn’t it the role of the courts to interpret the law, and not the role of the executive through its federal agencies? That of course wasn’t the position of the Reagan EPA, which sought a looser interpretations of the Clean Air Act and so pressed for a high level of deference to its decisions. (Ironic fact: The head of the EPA at the time? Amy Gorsuch—Justice Neil Gorsuch’s mother.)
If there is any doubt about who is behind this move to end Chevron, you need only look at the plaintiffs. They are backed by the Cause of Action Institute and the New Civil Liberties Alliance, both of which have financial ties to the Koch Network.
Assuming that the Court overrules or kneecaps Chevron at the end of this term, the effect of such a ruling won’t immediately be clear. Cases would have to be brought under whatever new standard the Court announces, and that will start to reshape the administrative landscape.
But that is the path it appears the Court wishes to lead us down. This activist, conservative majority has already dealt significant blows to the power of the executive branch to regulate wetlands, securities and student loans. And extremist judges are already attacking the authority of the FDA, including its approval of critical abortion medications like mifepristone. If the Court proceeds to overrule Chevron, this could upend the field entirely, and we would enter an entirely new and uncharted world of conservative judicial activism.
