The SCOTUS Just Bid Us “Happy Summer!” With a Slew of Shameful Decisions — Part I: The Chevron Deference
Part one
When something goes wrong, what do most people do?
Blame government.
When people are denied certain opportunities to improve their lives, what do they do?
Blame government.
While there is certainly enough blame of the government to go around, it’s lazy to simply point a finger at the president, Congress, our state and local lawmakers without understanding wider contexts behind particular decisions affecting our lives.
So get ready for the finger-pointing in all the wrong directions when our food is not adequately inspected, our water is dirtier, our air is more polluted, our workplaces more dangerous, thanks to a major decision handed down this week from the almighty unelected black-robed monarchs on the United States Supreme Court (SCOTUS).
Most people will stare back at you blankly if asked about “the Chevron deference,” unaware its gutting this week will roll back decades of regulations protecting us from corporate predation.
What is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., aka “the Chevron deference”?
According to Cornell Law School:
In Chevron [in 1984], the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as Congress had not spoken directly to the precise issue at question.
In other words, experts at government agencies like the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the US Dept. of Agriculture (USDA), the Occupational Health and Safety Administration (OSHA) have the authority to appropriately operate within the scope of existing legislation if that legislation does not specifically prohibit rules from being enacted.
When the SCOTUS ruled 6–0 forty years ago that judges’ roles should be limited when evaluating agency experts’ actions, Justice John Paul Stevens wrote:
Judges are not experts in the field, and are not part of either political branch of government.
For example, there is no law stating we need to keep carbon dioxide (CO2) emissions from elevating 1.5 degrees Celsius--2.7 degrees Fahrenheit — above pre-industrial levels by 2040. But that is the overwhelming majority of climate scientists’ consensus gleaned through years of data. So federal policies enacted through the various climate-related agencies tasked with crafting rules are working within legislative parameters to successfully incentivize renewable energy.
There is no law prohibiting municipal water infrastructure from being constructed from lead, which used to be the preferred material out of which pipes were made. Yet the EPA has received $3 billion from the Biden administration’s “Investing in America” agenda to identify and replace lead service lines, preventing lead exposure in drinking water.
Conversely, in 2017, the Trump administration’s EPA refused to ban the dangerous neurotoxic pesticide chlorpyrifos, linked to multiple adverse health outcomes, particularly brain damage in children.
This weeks 6–3 SCOTUS ruling along ideological lines in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce case, however, all but eliminates federal agencies’ regulatory authority for a plethora of regulations ranging from worker protections, climate, and drug safety. If rules and regulations are not specified in legislation, the right-wingers on the court stated, agencies may not enact their own.
Justice Elena Kagan, one of the three dissenters, explained:
When does an alpha amino acid polymer qualify as a ‘protein’? I don’t know many judges who would feel confident resolving that issue. But the [Food and Drug Administration] likely has scores of scientists on staff who can think intelligently about it, maybe collaborate with each other on its finer points, and arrive at a sensible answer.
She added:
All that backs today’s decision is the majority’s belief that Chevron was wrong — that it gave agencies too much power and courts not enough. But shifting views about the worth of regulatory actors and their work do not justify overhauling a cornerstone of administrative law. In that sense, too, today’s majority has lost sight of its proper role.
The New York Times reported Friday:
Anti-abortion activists are celebrating the ruling as a big win for their plans to further restrict medication abortion. They see the decision as a new precedent that can work in their favor as they seek to bring another case against the Food and Drug Administration to the Supreme Court, which rejected their bid to undo the FDA’s approval of the drug earlier in June.
Jackie Calmes, columnist for the Los Angeles Times tweeted:
Washington Rep. Pramila Jayapal warned:
Make no mistake: this is the outcome of a multi-decade crusade by big business and right-wing extremists to gut federal agencies tasked with protecting Americans’ health and safety to instead benefit corporations aiming to dismantle regulations and boost their profits.
But this doesn’t mean Congress is powerless. It being a member of the legislative branch, it can craft legislation tightening up and codifying agencies’ regulations. Rep. Jayapal added:
That is why Congress must immediately pass my Stop Corporate Capture Act, the only bill that codifies Chevron deference, strengthens the federal-agency rulemaking process, and ensures that rulemaking is guided by the public interest–not what’s good for wealthy corporations.
Author and political commentator Thom Hartmann stated in a piece titled, “The Supreme Court has Lit Our Planet on Fire”:
As if Congress had the time and staff. As if Congress was stocked with scientific experts. As if Republicans in the pockets of fossil fuel billionaires wouldn’t block any congressional action even if it did.
Gorsuch has argued, essentially, that making rules — even the detailed scientific minutiae of rules — should be done by Congress instead of the EPA, and that agencies like the EPA should simply play the role of cops on the beat, enforcing those rules.
The nation’s highest court is not the most salacious of topics. It’s a rare individual these days can name even one, let alone all nine, justices. But it is that high court that has been responsible for myriad consequential decisions that have shaped American culture. From the 1896 Plessy vs. Ferguson case that legalized racial segregation to the Brown vs. Board of Education case that reversed it; Roe vs. Wade that legalized abortion nationwide and the court reversed two years ago; the Griswold v. Connecticut case that defends the right to contraception; Loving v. Virginia that legalizes interracial marriage; the Lawrence v. Texas case that protects homosexual intercourse; the Obergefell v. Hodges case legalizing same-sex marriage; anti-voting rights decisions in the Shelby County v. Holder and Brnovich v. DNC cases; to “corporate personhood” decisions that assert “money equals free speech” and “corporations are people” encouraging political bribery, the almighty unelected black-robed monarchs with lifetime appointments on the United States Supreme Court influence our daily lives behind the scenes for generations.
For more shameful decisions SCOTUS handed down before leaving for vacation, click for “Part II” here.