Chevron Doctrine to be replaced with Only Republican Presidents are Permitted to Govern Doctrine

Above: money extremely well-spent

As expected, it looks like the Republicans on the Supreme Court are going to overrule the Chevron doctrine so it can arrogate the power of the administrative state to itself unabated:

On Wednesday, the Supreme Court’s conservative supermajority signaled its intent to overturn four decades of precedent and award itself even greater authority to strike down policies that govern every conceivable aspect of life in the United States. This revolution has been years in the making, the result of a lavishly funded campaign to transform the courts into a weapon against any regulation you can think of. The environment, the economy, health care, civil rights, education: All aspects of federal governance will be in peril, subject to the whims of unelected judges with zero expertise or accountability and a distinct bias toward deregulation. Throughout the morning, SCOTUS sounded hostile to the very notion that elections have consequences—at least when a majority of justices dislike those consequences. And the court’s right flank evinced little concern about tossing 40 years of stable law, encompassing more than 17,000 federal court decisions, in favor of the Federalist Society’s preferred regime. It appears ready, in Justice Elena Kagan’s words, to “blow up one doctrine of humility, blow up another doctrine of humility, and then expect anybody to think that the courts are acting like courts.”

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For decades, the Supreme Court has instructed judges to use a tool called Chevron deference when faced with such ambiguities. The doctrine is rooted in a 1984 decision, Chevron v. NRDC, which involved an EPA policy that loosened restrictions on air pollution. (This policy was enacted by Justice Neil Gorsuch’s mother, EPA administrator Anne Gorsuch.) Environmental groups filed suit, but SCOTUS unanimously sided with the EPA’s approach. The court explained that agencies are staffed by experts with far more knowledge in their specific area than judges. These agencies are accountable to the president, who is in turn accountable to the citizenry. The court thus held that “it is entirely appropriate” for agencies to make the policy choices inherent in interpreting ambiguous statutes. (This notion was already deeply entrenched in statutes and precedents going back to the 1940s.)

At the time, Chevron drew staunch support from conservative judges like Antonin Scalia, who delivered a famous paean to the doctrine on the grounds that it “accurately reflects the reality of government.” This position aligned neatly with the Reagan administration’s ongoing campaign of deregulation, which faced resistance from left-leaning courts. In the 1980s, Chevron deference forced judges to uphold Ronald Reagan’s deregulatory measures, making it a pet cause of the conservative legal movement.

During Barack Obama’s presidency, though, courts increasingly relied on Chevron to uphold a slew of new, progressive regulations. Predictably, the conservative legal movement and its industry backers abhorred this development. So right-leaning judges pulled an about-face, effectively declaring war on Chevron. In this era, the doctrine helped keep in place new regulations—which the conservative legal movement abhorred. The Federalist Society, abetted by dark money groups linked to the Kochs, launched a crusade to turn Republican-appointed judges against Chevron. They rebranded the decision as an abdication of judicial duty that smothers the free market economy with illegitimate bureaucrat diktats. The gambit worked; even Justice Clarence Thomas, who once sang from the Chevron hymnal, turned against the precedent after he was befriended by its billionaire foes. It was no surprise, then, when the Supreme Court seized upon the herring cases as a vehicle to overturn Chevron—despite the fact that it had to exceed its own authority in the process, dropping the narrower question of statutory interpretation to take dead aim at precedent.

The three liberal justices, led by Kagan, mounted an impressive defense of Chevron in the face of their colleagues’ open hostility. At its core, Kagan explained, the doctrine is about respecting democratic choices. Congress (whom the people elect) passes laws that grant the president (whom the people elect) broad discretion to make certain policy choices by assigning key decisions to executive agencies; federal judges (whom the people do not elect) must defer to these decisions so long as the accountable officials interpret the law reasonably. Some choices are highly technical and rely on the agency’s specialized expertise. Others are contentious, allowing the agenecy to take sides in a public debate.

Brett Kavanaugh has slipped very neatly into Anthony Kennedy’s role as the, ah, least intellectually accomplished member of the Court, and hence sometimes says things in public that the Court’s funders might prefer to stay discussions held at exotic hunting resorts with snifters of Louis XIII:

With Chevron, each new administration provides its own answer to these questions. If the people don’t like the answers, as Justice Ketanji Brown Jackson noted, they can vote for a new president. Without Chevron, each administration is handcuffed to the federal judiciary’s answer, replacing a “democratic structure” with “judicial policymaking.” Jackson didn’t say this next part, but everyone knows it: Because SCOTUS is relentlessly hostile to the administrative state, this system stacks the deck in favor of deregulation. Which—let’s be honest—means boosting Republican presidents and hobbling Democratic ones.

And yet, throughout Wednesday’s arguments, the conservative justices condemned Chevron as some kind of anti-accountability chaos agent that sabotages good government. Justice Brett Kavanaugh, who dissed Chevron during his audition for SCOTUS, assailed the decision’s democratic traits as a bug, not a feature. “The reality of how this works,” Kavanaugh said, “is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in—whether it’s communications law or securities law, competition law or environmental law, it goes from pillar to post.” New administrations change policy, Kavanaugh continued, “because they have disagreements with the policy of the prior administration.”

“It is very bad when the president who wins national elections can enact the regulatory policies that they prefer” is a remarkable thing to just out and admit. And gets even worse given the fact that everyone understands that this is strictly a one way ratchet: Trump can use power delegated by Congress to impose tariffs (even in the absence of the security threat required by the statute) while Biden cannot use the power Congress gave the executive branch to “waive or modify” student loan payments to waive student loan payments.

The result of this is going to be case after case in which experts who are actually accountable get their reasonable interpretations of their authority overruled by extremely partisan lawyers with no relevant expertise:

Here’s the bottom line: Without Chevron deference, it’ll be open season on each and every regulation, with underinformed courts playing pretend scientist, economist, and policymaker all at once. Securities fraud, banking secrecy, mercury pollution, asylum applications, health care funding, plus all manner of civil rights laws: They are ultravulnerable to judicial attack in Chevron’s absence. That’s why the medical establishment has lined up in support of Chevron, explaining that its demise would mark a “tremendous disruption” for patients and providers; just rinse and repeat for every other area of law to see the convulsive disruptions on the horizon.

“Judges should know what they don’t know,” Kagan protested on Wednesday, and leave these questions up to the people who do know. This Supreme Court, however, cannot conceive of the possibility that it is ill-equipped to decide every major policy question of the day. And this hubris is fueling a reckless race to snatch ever more power away from what remains of our democracy.

Even a lot of politically engaged people have no idea how bad the consequences of the 2014 and 2016 elections will be.

…I should note that I haven’t had the chance to listen to the oral argument yet, but Ian Milhiser holds out at least a little hope that the Kavanaugh/Gorsuch/Alito/Thomas “we will be kings of America” faction won’t be able to get a fifth vote to explicitly overrule Chevron in this case, whatever that may be worth.