Chances are, typical Americans have never heard phrases such as “Chevron deference” and “administrative state,” so most of the public will likely shrug their shoulders in response to the Supreme Court’s 6-3 decision in Loper Bright Enterprises v. Raimondo. But it’s no exaggeration to say that this one ruling will affect nearly everyone in the country by changing how the government works.
My MSNBC colleague Jordan Rubin explained this morning:
The Supreme Court achieved another goal of the conservative legal movement Friday, when it overturned a long-standing precedent requiring deference to federal agencies when interpreting ambiguous laws on matters of environmental regulation and much more.
I’m mindful of the fact that when normal people see the words “federal regulatory authority” in a sentence, they immediately look for something else to read, but stick with me for a minute because I think readers will end up caring more about this than they might assume at first glance.
Indeed, if this weren’t important, corporate giants — including the exceedingly wealthy interests who showered Justice Clarence Thomas with luxurious gifts — wouldn’t have spent the last several decades fighting tooth and nail for the victory that Republican-appointed Supreme Court justices handed them today.
The underlying issue isn’t as complex as it might seem. Congress passes all kinds of laws intended to protect the public, but it’s unrealistic to think lawmakers will be able to draft legislation with granular specificity and crystal-ball foresight. Congress can approve a bill related to preventing air pollution, for example, but it doesn’t — and can’t — write technical details related to particulate matter.
With this in mind, the legislative branch delegates these decisions to relevant federal agencies. Congress passes laws related to food safety, but it’s left to scientists and health experts at the FDA to work out the details and shape federal policies to prevent people from getting sick. Congress passes laws related to auto safety, but the officials at the National Highway Traffic Safety Administration craft specific standards.
In 1984, in a case called Chevron v. Natural Resources Defense, the Supreme Court ruled unanimously that this is how the regulatory process is supposed to work, and when there are inevitable legal ambiguities, the relevant federal agencies would have regulatory flexibility.
Today, Republican-appointed justices overturned that decision. Instead of having the federal government defer to experts in relevant agencies, power will now shift to the courts.
In her dissent, Justice Elena Kagan walked through some of the practical scenarios. When it comes to food safety, for example, “When does an alpha amino acid polymer qualify as such a ‘protein’? Must it have a specific, defined sequence of amino acids?” For the last 40 years, such questions were answered by federal scientific experts. Going forward, the Supreme Court’s far-right majority expects judges to provide the answers.
Similarly, Kagan added, Congress passed the Endangered Species Act, mandating the designation of “vertebrate fish or wildlife” species, including “distinct population segment[s]” of those species. The justice asked, “What makes one population segment ‘distinct’ from another? Must the Service treat the Washington State population of western gray squirrels as ‘distinct’ because it is geographically separated from other western gray squirrels?”
For the last 40 years, such questions were answered by knowledgeable officials at the Fish and Wildlife Service. Going forward, the Supreme Court’s far-right majority expects judges to provide those answers, too.
“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,” Kagan concluded. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”
This will change how the government works — and it won't be a change for the better.