Supreme power grab Judd Legum

For thirty years, federal law has required commercial fishing boats to include a trained observer to ensure the vessel does not engage in overfishing or other prohibited practices. The law specifies that certain classes of boats pay the costs of their own monitors. But, it is silent on herring boats. For many years, the National Oceanic and Atmospheric Administration (NOAA) picked up the cost of the monitors for herring boats. 

In 2020, however, the federal government began to run out of money for the monitoring program, and the Trump administration started requiring herring boats to share the costs of the federal monitors, which is about $700 per day. The herring boat operators sued, saying that the NOAA had exceeded its authority. 

The Biden administration soon reversed the regulation and reimbursed 100% of the costs incurred by the herring boat operators under the Trump-era rule. Nevertheless, the case, Loper Bright Enterprises v. Gina Raimondo, made it all the way to the Supreme Court. There were simple, narrow ways to resolve the case:

1. The Supreme Court could have found that the case was moot because the herring boat operators had been fully reimbursed, and the rule had been reversed.

2. The Supreme Court could have found that charging the herring boat operators for federal monitors violated the clear language of the statute, which specified which types of boats could be charged. 

Instead, on Friday, the Supreme Court used the case as a pretext for overturning a landmark decision, Chevron, that has been a cornerstone of federal regulation since 1984. This has been a longstanding priority for right-wing ideologues seeking to dismantle regulations protecting the environment, curbing abuses in financial markets, and ensuring the safety of consumers. 

Why Chevron matters

Under amendments to the Clean Air Act passed in the 1970s, companies that modified or constructed a “stationary source” of air pollution were required to obtain permits. But a key question was left unanswered. What counts as one “source”? Is it an entire industrial complex? Or is it each individual source of air pollution within the complex?

The Reagan administration’s EPA issued a rule allowing companies to consider a grouping of industrial sources of pollution as a single stationary source. This allowed companies to create new sources of air pollution within a “bubble” as long as it was offset by reductions in admissions — or the decommissioning — of another source. The Reagan administration’s interpretation would make the process of reducing air pollution slower because companies could create new sources of air pollution without going through the permitting process. 

An environmental group, the Natural Resources Defense Council (NRDC), sued, arguing that the EPA’s interpretation of the statute was impermissible. The case, known as Chevron v. NRDC, reached the Supreme Court in 1984. 

In Chevron, the Supreme Court unanimously decided that when a statute contains an ambiguity, courts should defer to the judgment of the federal agency in resolving the ambiguity, as long as the agency’s action is “reasonable.” The Supreme Court found that the EPA acted reasonably and upheld its interpretation of the Clean Air Act. 

Over the next 40 years, the Chevron decision has been cited over 18,000 times by federal courts. As the Chevron decision itself illustrates, it is not a particularly ideological decision. But Chevron deference is a critical tool that allows the government to address important and complex problems. 

For example, in 1987, Congress, through the National Parks Overflights Act, directed the Department of the Interior, in coordination with the Federal Aviation Administration, to “provide for substantial restoration of the natural quiet and experience.” As Justice Kagan noted in her dissent in Loper Bright, the law left some important questions unresolved: “How much noise is consistent with “the natural quiet”? And how much of the park, for how many hours a day, must be that quiet for the “substantial restoration” requirement to be met?” Under Chevron, federal courts defer to the expertise of the people at the Department of the Interior who understand the nature of the park and what it would take to restore “natural quiet” — as long as the decisions made by the Department of the Interior were “reasonable.” 

Other questions are even more technical. Kagan cites the Public Health Service Act’s requirement that the Food and Drug Administration (FDA) regulates “biological products,” including “proteins.” A recent lawsuit challenged the FDA’s determination that an “alpha amino acid polymer” is considered a “protein.” Chevron recognizes that the FDA has the expertise to make these kinds of determinations, not the courts. 

Further, federal agencies like the FDA are accountable to the administration, which can be replaced by voters. Federal judges, on the other hand, receive lifetime appointments.

“A rule of judicial humility gives way to a rule of judicial hubris”

In Loper Bright, Chief Justice Roberts, writing for the majority, casts aside 40 years of judicial precedent. “Chevron is overruled,” Roberts declares.

This is fundamentally a power grab. Instead of deferring to the expertise of agencies to implement statutes in the face of inevitable ambiguities, the Supreme Court has empowered itself, and other federal courts, to do the job. “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” according to the majority. “Courts do.”

As a practical matter, it empowers any federal judge — including hundreds appointed by Trump — to strike down regulations by asserting that an agency misinterpreted a statutory ambiguity. Chevron itself is neutral because it protects the statutory interpretations of liberal and conservative administrations. But if your goal is to dismantle as many regulations as possible, getting rid of Chevron makes your task much easier. 

The decision to overturn Chevron is particularly remarkable because it was based on a statutory interpretation. Roberts found that Chevron deference was actually prohibited by the Administrative Procedure Act, a law passed 80 years ago. But if Congress wanted to empower the courts, not agencies, to resolve statutory ambiguities, it could have passed a law repealing Chevron at any time between 1984 and today. But Congress chose not to do so. But the Supreme Court decided to award itself this power anyway. 

The farce of Supreme Court nomination hearings

The decision to overturn Chevron was formally made on Friday. But the writing has been on the wall since former president Donald Trump appointed three Supreme Court Justices who were part of the ideological campaign to kill Chevron. Trump’s nominees were all asked about Chevron during their confirmation hearings, and all deliberately gave the impression that they would respect Chevron as precedent. 

Chevron “is a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis,” Justice Barrett said in response to written questions. Barrett refused to elaborate in any detail, claiming it “would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals.”

“As a Supreme Court Justice, if you were to make this decision to overturn Chevron, would you consider the implications on all of the cases in the U.S., and the rules and the uncertainty that it would create?” Senator Amy Klobuchar (D-MN) asked Justice Neil Gorsuch during his confirmation hearing. “Goodness, Senator, yes,” Gorsuch replied. Klobuchar asked Gorsuch about a previous opinion he wrote as a circuit court judge that criticized Chevron. Gorsuch insisted that he had not “prejudge[d]” the case and would “come at it with as open a mind as a man can muster.” He then signed onto a ruling that stated Chevron was wrong from the moment the decision was issued. 

Justice Kavanaugh wrote a Harvard Law Review article in 2016 harshly criticizing Chevron. But during his confirmation process, he insisted that he respected Chevron as precedent. “Chevron is a precedent of the Supreme Court entitled to the respect due under the

law of precedent,” Kavanaugh wrote in response to written questions. “As I explained at the hearing, I have applied the Chevron doctrine in many D.C. Circuit cases over the last 12 years.” Kavanaugh then signed onto the majority opinion overturning Chevron, which cited his law review article.