Tomorrow at the Supreme Court

Tomorrow, Wednesday, the Supreme Court will hear argument in Loper Bright Enterprises v. Raimondo, a pair of cases we’ve discussed in the past that could let conservatives achieve a long-term goal: Disassembling what they call the nanny state and what I think of as executive branch agencies that conduct the nation’s business day in and day out. The goal is to undo 40 years of administrative jurisprudence (so much for precedent!) and end the federal government’s ability to establish and administer rules that balance differing interests and make life better for all of us. Administrative agencies use their expertise to balance different interests and implement procedures on matters like health and safety concerns or consumer financial protection. Because that involves costs and limitations on businesses that can prevent them from being as profitable as they would like to be, some folks oppose leaving these decisions in the hands of career public servants. You will be able to listen to the oral argument here.

I intended to write about Loper Bright last night, but the excitement of possible snow and the possibility of power outages (which fortunately didn’t materialize) convinced me I needed to spend some time doing a little bit of advance baking and winterizing. All chickens and dogs, as well as humans, being snug and well-fed this morning, I thought I’d take advantage of my lunch break to make sure we’re all up to speed on this tremendously important case. I expect to be back tonight with a report on jury selection in the E. Jean Carroll defamation case, which began this morning.

Loper Bright is an effort to end or at least severely limit the reach of Chevron deference, a longstanding doctrine that determines when the courts are supposed to defer to an executive branch agency’s interpretation of a law. In 1984, the Supreme Court ruled that courts should defer to administrative agencies' interpretation of laws when the statutory text is silent or ambiguous. That permits experts and career professionals to decide how to implement vague laws. This case is about whether the courts should substitute their judgment for those of experts on issues involving science, medicine, environmental protection, and so forth.

Conservatives have long sought to prevent federal agencies, like the EPA but also others, from regulating businesses. This case involves a sympathetic-looking small business, overwhelmed by an agency regulatory decision, to make the case that courts should be making the call, not “bureaucrats”. The cornerstone of these cases is the implication that the nanny state is making life impossible for the little guy.

The conservative group Alliance Defending Freedom described Loper Bright like this: “A National Marine Fisheries Service regulation requires that herring fishing boats allow an additional person on board their small boats to serve as a monitor, tracking compliance with federal regulations. The fishermen must also pay the monitor’s salary of around $700 per day. Overall, the regulation reduces fishing profits by about 20%. Loper Bright Enterprises, a fishing company in New England, and other fisheries sued to challenge this federal government rule, arguing that NMFS lacked statutory authority to force them to pay for these monitors.” Of course, this narrative ignores the importance of monitoring. And the point of the litigation isn’t really to provide relief for small businesses. It’s all about shifting decision-making about the regulation of big business out of the hands of agencies and into the courts, where conservatives believe they get a better reception. This has been the work of decades—ever since the Chevron case was decided.

I wrote at the start of the term that it was not clear whether there were five votes to reverse Chevron, but it’s entirely possible. Justice Thomas, whose secret participation in donor events organized by the Koch Network, some of whose lawyers are involved in this case, was revealed by ProPublica reporting last year, still appears to be participating in the case. Thomas has what certainly looks like a conflict of interest but the Justices are not subject to the same code of ethics as other federal judges and no one can force him to step aside. Although he supported Chevron deference in a 2005 opinion, he has since changed his view.

Instead of limiting their consideration of the case to the narrow issue presented on compliance costs imposed on fisheries, the Court jumped to the larger issue of whether they should overrule Chevron. That signals the Court’s willingness to seriously consider taking that step. Justices Gorsuch and Kavanaugh have shown signs in the past that they are keen to reconsider Chevron, and there has been some indication Chief Justice Roberts and Justice Alito are in that camp too. Justice Barrett’s views are less clear, while the progressive justices seem to support retaining precedent. That means tomorrow’s oral argument will be closely watched for signs of where a majority of the justices are, and whether there is a middle-of-the-road consensus for taking steps that fall short of completely undoing Chevron deference, and if so, just how far they would go.

The Court is considering other cases involving administrative agency decision-making this term—one involving the Consumer Finance Protection Bureau and one involving the FDA and the drug Mifepristone—so this case isn’t being decided in a vacuum. In terms of cases that have the potential for the strongest effect on our daily lives, these cases are way up there and well worth paying attention to.

We’re in this together,

Joyce