Today, the Supreme Courts conservative majority upended the way our
federal government functions by overturning the 40 year old landmark
decision Chevron
VNRDC. It requires courts to defer to the expert judgment
of federal agencies when the law is ambiguous.
Today's 6 three decision transfers an extraordinary amount of power
from the executive branch
to the federal judiciary. Mark Joseph Stern and Slate writes
that after today,
virtually every decision an agency makes will be subject to
a free floating veto by federal judges with 0 expertise
or accountability to the American people.
It is one of the most far reaching and disruptive
rulings in the history of the Court.
Since 1984, federal courts have applied Chevron in about
18,000 decisions in every conceivable area of the law.
Energy policy, education, Food and Drug safety,
labor, the environment, consumer protection,
finance, healthcare, housing law, law enforcement.
The list is pretty much endless.
It has become the background principle against which Congress enacts
all legislation.
That all ends now. Joining me now are Sherrilyn Eiffel,
President and Director, Council Emeritus of the N Double ACP
Legal Defense Fund,
and Mark Joseph Stern, senior writer covering the courts and
the law for Slate magazine.
Thank you both for being here tonight.
Sherrilyn, let me just first get your reaction to this
landmark decision from the High Court.
It is a seismic shift in how the United States
government operates,
and I worry that many Americans
will not understand that this is as important an issue,
as important a transformation of how our country will be
run as any that we are confronting this year.
It is a huge judicial power grab.
It bespeaks a court that is arrogant and unwilling to
recognize
that the the potential expertise of federal agencies.
It takes power from Congress,
which after all, delegated that power to federal agencies.
And I think it has created a problem it is
not ready for in terms of the kind of backlog
that we're going to see
in these decisions. It has been a project,
though, of the conservatives for some time to deal with
the Chevron issue.
Conservatives of the kind, you know,
the, the, the form, the kind of former Republican
business lobby has, has wanted to get at Chevron.
So it doesn't surprise me that Chief Justice Roberts wrote
the opinion.
These would, this would serve the kind of interest that
he has had for some time.
This is not a MAGA opinion.
This is a, a traditional Republican opinion,
at least as they have conceived of,
of Chevron over the last 10 or so years.
But it is, it is,
it is devastating, I think,
and potentially catastrophic. You know,
I, I, I defer to you guys here,
the experts, but I, I wonder if there isn't a
bit of magus sprinkled in there.
Mark Joseph Stern just because the deep state,
the administrative state has been such a whipping post for
the upper echelons of Trump Inc,
including Steve Bannon, the guy going to jail on Monday.
You know, they they have loathed
agencies, the federal bureaucracy, and they have come to embrace
the judiciary since they have hijacked it for conservative ends.
Yeah. I think this is an aspect of the traditional
Republican business lobby that the MAGA movement has sort of
embraced and turbocharged.
Because what the majority opinion by Chief Justice Roberts reflects
is not just this deep distrust of government employees,
like you say, the deep state that Donald Trump wants
to purge,
but also a fundamental hostility toward how government works today.
Right. The majority is furious that when Congress steps in
to enact new legislation in response to evolving problems,
like, for instance, the Great Recession in
2008, it understands that it can't foresee every little problem
that could arise on the ground and it can't prescribe
every future solution to all of those issues.
So what Congress does instead and has done for more
than a century,
is grant these federal agencies broad power
to decide how exactly to implement and enforce these laws
and to do so in accordance with their own expertise.
The agencies that the court dismisses as staffed by beady
eyed bureaucrats,
I mean, they're actually staffed by career civil servants and
experts with deep knowledge and experience working on issues like
here,
Monetary policy elsewhere, environmental policy,
Food and Drug safety, right?
I think that these are the people you would rather
trust deciding these major issues,
some of which can be literally life or death,
rather than judges who happen to have a law degree
in a black robe and have now made themselves sort
of the kings,
the deciders of all major and minor questions of law
and policy in the country.
So what the majority of the court is telling Congress
is you have to start writing narrower legislation.
You have to start giving less US authority to these
agencies.
You have to write feebler laws that are less capable
of addressing future problems as they arise.
And all of that is a recipe for paralyzing government,
for paralyzing specifically the regulatory state that whether we know
it or not,
we are all relying on to ensure we have clean
air,
clean water, safe food and drugs.
Who really likes that outcome?
It's industry, it's polluters, it's corporations,
it's billionaires. And so that has always been the class
that kind of came together.
MAGA and the Republican lobby are absolutely in agreement on
this particular issue because it's good for their bottom line
when they can evade EPA regulations and dump as much
pollution into our rivers as they want.
Yeah, this, Sherilyn. This seems like a huge win for
the Koch brothers,
is it not?
Oh, it absolutely is. But let's take it even a
step further.
I mean, think about the effort that at least something
is important to to regulate social media.
Think about the Department of Education,
think about all of the various agencies that are involved
with law enforcement and weapons and so on and so
forth.
The court is essentially putting itself in the position of
being the last word on how all of those aspects
of our lives are managed.
The only thing I can think that could be positive
about this is that the court has now made a
case for expanding the Supreme Court and the federal judiciary.
Because a court that can't
finish its docket until July
certainly is not a court that is prepared to take
on all of the cases that will wind up through
the system as a result of it eliminating the Chevron
doctrine. That's the only silver lining that I can see.
But I do think this is very,
very grave indeed. You know,
Ian Malheiser at Vox has just gives a sense of
how much more work the Supreme Court has taken on.
I mean, these are decisions that they have no expertise
in,
and they are granular and they run the gamut.
Here's an excerpt. How much nitrogen may be discharged by
a wastewater treatment plant in Taunton,
MA? Is there effective competition between cable TV providers and
streaming video providers in Kawaii,
Hawaii? Does the process of mixing and bagging sand constitute
milling,
which is regulated under the Mine Safety and Health Act,
or manufacturing, which is regulated under the Occupational Safety and
Health Act?
I mean, these are decisions that someone like Neil Gorsuch
has no aptitude to answer.
He confused in his ruling on the SEC or I
believe the EPA,
nitrous oxide, which is laughing gas,
and nitrogen oxide, which is a smog causing emission.
And he's the guy that's going to be making these
calls.
Alex. Remember, until a few months ago,
Justice Alito couldn't even pronounce Mephra Prestone,
the abortion drug. These are not the areas in which
they are expert.
But this is about power.
And I really think it's important to pay attention to
the opinion written by Chief Justice Roberts.
It's like an opinion he's had in his desk drawer
for 10 years.
It ignores everything that we have been hearing over the
past two years about the court.
And he talks about the court making decisions with a
with a clean heart and a clear mind and how
judges are are are those we can rely on to
be non political and impartial.
He's basically making the case once again that everything you
have been seeing the last couple of years,
pay no attention to that.
We are still the umpires calling balls and strikes.
And that's why we're better at this than anyone else
could be.
It's a, it's a decision completely out of time,
but it reflects Chief Justice Roberts ideas about a kind
of imperial SCOTUS,
a kind of muscular judiciary that he believes is really
best equipped to make the best kind of decisions about
how we live our lives.
I find it very very troubling
to to just read the language of the decision.