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The
Supreme
Court
just
made a
massive
power
grab it
will
come to
regret
Story by
Ian
Millhiser
vox.com
23h • 8
min read
WASHINGTON
- The
Supreme
Court
handed
down
what is
likely
to be
one of
its most
consequential
modern-day
decisions
on
Friday.
Loper
Bright
Enterprises
v.
Raimondo
fully
consolidates
the
Court’s
dominance
over
federal
agencies
within
the
executive
branch
of
government.
It is a
radical
reordering
of the
US
separation
of
powers,
giving
the one
unelected
branch
of
government
all of
its own
power,
plus
much of
the
power
that
Congress
has
vested
in the
executive
branch.
Loper
Bright
overrules
a
decades-old
decision,
known as
Chevron
v.
National
Resources
Defense
Council
(1984),
which
held
that
courts
typically
should
defer to
federal
agencies
when
those
agencies
determine
federal
policy.
While
this
decision
will
undoubtedly
be
celebrated
by
Republicans
— and
especially
Republican
lawyers
in
conservative
legal
organizations
like the
Federalist
Society,
which
have
pushed
for a
decision
like
Loper
Bright
for
years —
the six
Republican
justices
responsible
for
Loper
Bright
will
likely
come to
regret
Friday’s
power
grab.
Loper
Bright
transfers
a simply
astonishing
amount
of
policymaking
authority
from
federal
agencies
that
collectively
employ
tens of
thousands
of
people,
to a
judiciary
that
lacks
the
personnel
to
evaluate
the
overwhelming
array of
policy
questions
that
will now
be
decided
by the
courts.
This
problem
will be
felt
most
acutely
by the
Supreme
Court
itself,
which
has only
nine
justices
staffed
by a
bare
handful
of law
clerks
and a
skeletal
administrative
staff.
The
Court’s
decision
to seize
this
power is
all the
more
puzzling
because
it has
already
given
itself
sweeping
authority
to veto
nearly
any
decision
by an
executive
branch
agency
that, in
the
Court’s
words,
involves
a matter
of “vast
‘economic
and
political
significance.’”
The
Court’s
Republican
majority,
in other
words,
is
already
the
final
word on
any
policymaking
question
that
Congress
delegated
to a
federal
agency,
which
triggers
a
partisan
controversy.
Loper
Bright
expands
the
Court’s
authority
so that
it is
also the
final
word on
thousands
of
questions
that
hardly
anyone
cares
about at
all —
questions
like
what the
cable
television
rates
should
be on
one of
Hawaii’s
islands,
or how
much
nitrogen
can be
discharged
by a
wastewater
treatment
plant in
Massachusetts.
The
specific
policy
question
in Loper
Bright,
for
example,
is
whether
the
government
or
fishing
vessels
must pay
for
federal
observers
that
sometimes
must
accompany
those
vessels
while at
sea — a
question
that
virtually
no one
who
doesn’t
own a
fishing
vessel
has any
reason
to care
about
whatsoever.
So Loper
Bright
makes
the
courts,
and
ultimately,
the
Supreme
Court,
responsible
for
resolving
thousands
of
low-stakes
policy
questions,
which
often
cannot
be
resolved
simply
by
reading
the
law’s
naked
text.
The
justices,
in other
words,
can look
forward
to
missing
their
children’s
basketball
games,
skipping
out on
date
nights
with
their
spouses,
and not
really
doing
much of
anything
at all
besides
deciding
the
crushing
weight
of cases
that are
about to
land on
their
desks.
Welcome
to hell,
justices
of the
Supreme
Court.
It is a
hell of
your own
making.
So what
is Loper
Bright
actually
about?
Loper
Bright
overrules
a
Reagan-era
Supreme
Court
decision
known as
Chevron
v.
National
Resources
Defense
Council
(1984),
which
held
that
when a
federal
statute
delegating
policymaking
authority
to an
agency
is
ambiguous,
courts
typically
should
defer to
the
agency’s
reading
of that
statute
rather
than
trying
to
resolve
the
ambiguity
itself.
The
reasons
for this
deference
were
twofold.
As
Chevron
explained,
“judges
are not
experts”
in the
kind of
difficult
policy
questions
that
come
before
federal
agencies.
Think of
questions
like
whether
a
product
derived
from red
rice
yeast,
which
purportedly
helps
promote
healthy
cholesterol
levels,
counts
as a
“drug”
or a
“dietary
supplement”
under
federal
law?
Under
Chevron,
this
question
would be
decided
by FDA
officials
who’ve
spent
decades
studying
drugs
and
dietary
supplements.
Now it
will be
resolved
by
political
appointees
with law
degrees
and
black
robes.
The
other
justification
for
Chevron
is
democracy.
“While
agencies
are not
directly
accountable
to the
people,”
the
Court
said in
Chevron,
the
leaders
of
agencies
are
political
appointees,
and they
answer
to a
president
who is
accountable
to the
voters.
And so
“it is
entirely
appropriate
for this
political
branch
of the
Government
to make
such
policy
choices,”
rather
than
placing
that
power in
the
hands of
unelected
political
appointees
who
serve
for
life.
Chevron
was
initially
celebrated
as a
triumph
by many
prominent
Republicans.
It was
1984 and
President
Ronald
Reagan
was
cruising
to a
landslide
reelection,
and
Republicans
appeared
likely
to
control
federal
agencies
for
years
into the
future.
Many
federal
courts,
meanwhile,
were
still
dominated
by
liberal
Johnson
and
Carter
appointees
who were
prone to
striking
down the
Reagan
administration’s
deregulatory
actions.
So
Chevron
meant
that
those
courts
would
have to
butt out
and let
Reagan
and his
appointees
determine
the
direction
of
government.
One of
its
biggest
cheerleaders
was
Justice
Antonin
Scalia,
the
conservative
icon,
who
predicted
in a
1989
lecture
that “in
the long
run
Chevron
will
endure
and be
given
its full
scope”
because
it
“reflects
the
reality
of
government,
and thus
more
adequately
serves
its
needs”
than the
alternative.
Beginning
in the
Obama
administration,
however,
Chevron
fell out
of favor
with the
legal
right,
and the
Federalist
Society’s
annual
lawyers’
convention
became a
showcase
of
proposals
seeking
to
disempower
the
administrative
state.
Many of
the same
Republicans
who
praised
Chevron
when it
enabled
Reagan-era
Republicans
to roll
back
regulations
abandoned
that
view
when
President
Barack
Obama’s
appointees
were in
charge
of the
agencies.
Federalist
Society
calls
for
Chevron
to be
overruled
reached
a fever
pitch as
Republicans
consolidated
more and
more
control
over the
Supreme
Court.
Why
should
policymaking
authority
be
wielded
by the
Executive
Branch,
which
will
sometimes
be
controlled
by
Democrats,
when it
could be
wielded
by a
judiciary
firmly
in
Republican
Party
hands?
And so
Roberts’s
opinion
for
himself
and his
fellow
Republican
justices
is an
ode to
judicial
power.
The
framers
“envisioned
that the
final
‘interpretation
of the
laws’
would be
‘the
proper
and
peculiar
province
of the
courts,’”
Roberts
declares
in Loper
Bright.
Indeed,
his
opinion
seems to
deny
even the
possibility
that
statutes
are
sometimes
ambiguous
and
subject
to
multiple
plausible
interpretations.
Courts,
he
writes,
“understand
that
such
statutes,
no
matter
how
impenetrable,
do — in
fact,
must —
have a
single,
best
meaning.”
And so
he holds
that he
and his
fellow
oracles
will not
simply
resolve
ambiguities
in
statutes
delegating
power to
agencies,
but that
their
resolution
of these
cases
necessarily
determine
that
only one
possible
interpretation
is
“best.”
But the
facts of
Chevron
itself
belie
any
claim
that
every
law has
a single
“best”
meaning
that can
be
determined
by
diviners
wearing
black
robes.
That
case
involved
a law
requiring
certain
power
plants
to
obtain a
permit
if they
built or
modified
“stationary
sources”
of air
pollution
— an
ambiguous
phrase
that
raises
an
obvious
question:
“What is
a
stationary
source?”
During
the
Carter
administration,
the EPA
determined
that
this
phrase
means
any
”identifiable
piece of
process
equipment,”
which
meant
that a
plant
that
wanted
to
modify a
single
piece of
equipment
often
had to
obtain a
permit.
Reagan’s
EPA, by
contrast,
changed
this
rule to
only
require
a permit
if the
entire
plant
would
produce
more
emissions
after
individual
pieces
of
equipment
were
modified.
Truthfully,
both of
these
constructions
of the
statute
were
equally
plausible.
But
Chevron
ensured
that
this
difficult
policy
question
would be
resolved
by
environmental
policy
experts
overseen
by
politically
accountable
people —
if
voters
preferred
Carter’s
rule to
Reagan’s,
they
could
have
elected
a new
president
who took
a more
expansive
approach
to
environmental
regulation.
Loper
Bright,
by
contrast,
rests on
the
fiction
that
there is
one
“best”
interpretation
of all
laws,
and it
is the
interpretation
preferred
by
entirely
unaccountable
judges.
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