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Justice Kagan lays it out: "The majority disdains restraint, and grasps for power."
Chief Justice John Roberts announced the latest — and biggest — step in a continued judicial aggrandizement project on Friday, overturning a 1984 precedent that directed courts to defer to reasonable agency interpretations of ambiguous laws within the agency’s bailiwick. That 1984 precedent, known as Chevron deference, is gone. “Chevron is overruled,” Roberts wrote in his 6-3 decision for the court. The Chevron decision is now marked with a “tombstone … no one can miss,” Justice Neil Gorsuch helpfully shared in a concurring opinion. Roberts announced the move with support from all five of his fellow Republican appointees to the U.S. Supreme Court. Loper Bright Enterprises v. Raimondo was the most significant of several administrative cases the court took up this term, and Roberts’s decision for the court has the potential for dramatic effects up and down government. The chief justice did not hide his aims. Starting from a flawed premise that “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning,” Roberts announced a wholesale rebalancing (most accurately, unbalancing) of the federal government, writing, “Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” In dissenting for the liberal trio, Justice Elena Kagan sounded the alarm: “The majority disdains restraint, and grasps for power.” In his decision for the court, Roberts took power for the courts that has previously been shared among the branches under Chevron, holding that the Administrative Procedure Act doesn’t allow Chevron deference. He concluded this because the APA states that “the reviewing court shall decide all relevant questions of law” in relevant circumstances. This is a very weak justification to overrule a decision like this, as Kagan detailed in dissent, both on its face and because it required overruling longstanding precedent. On a more generalized note, Chevron was not the boogeyman that Roberts makes it out to be. It was a careful, if imperfect, attempt to adapt to governance in the modern world, by laying out a roadmap for how our constitutional system allows Congress to give agencies the ability to carry out their missions. This is done in many instances by letting the agency officials — experts or politically accountable figures (or both) — fill in certain details of specific laws passed by Congress. The agencies couldn’t do whatever they want under Chevron. They had to present a reasonable interpretation of an ambiguous statute that the agency was responsible for implementing. And the judiciary decided if Chevron deference applied and if the agency’s interpretation was reasonable. In short, all three branches were involved — given appropriate roles that reflected their expertise and their constitutional roles. To the extent Chevron looked like a broad decision, moreover, that was a function of the size of our modern-day government — not the deference principle itself. The federal government is large, unwieldy, complex, and acts significantly in many areas of our lives. In his Loper Bright decision, Roberts leaves no ambiguity: He wants more control over all of that. How much power did he give himself and his conservative majority on Wednesday? We do not yet know, but it is effectively limitless, as Kagan detailed in her dissent for the liberal trio (and as Justice Clarence Thomas suggested in his concurrence). Kagan read extensively from her dissent from the bench. If you weren’t in court today, you won’t be able to hear that until the fall because the court has thus far declined to livestream opinion announcements despite readily having the capability to do so. Instead, opinion announcements are only made public once turned over to the National Archives in the fall. Kagan’s dissent explained what amounts to the dual-aggrandizement problem of court’s decision. First, of the administrative law attack, Kagan wrote, “It is now ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. … Today’s decision is not one Congress directed. It is entirely the majority’s choice.” Further, Kagan wrote, “[T]he majority cannot destroy one doctrine of judicial humility without making a laughing-stock of a second.” The second is stare decisis, the court’s respect — well, the respect of a hypothetical court — for its own prior precedents. On that point, Kagan was unrelenting, explaining that the court needs a “particularly special justification” to overrule a precedent like Chevron because “Congress could always overrule” it and “so many governmental and private actors have relied on it” since 1984. “The majority has nothing that would qualify,” she continued. “Its justification comes down, in the end, to this: Courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority.” Of Roberts’s claim that the Chevron decision was “unworkable” because judges too often reached different decisions about when to find the ambiguity that led to agency deference under Chevron, Kagan noted that “the legal system has for many years, in many contexts, dealt perfectly well with that variation.” After detailing several such variations, she landed, “There are ambiguity triggers all over the law. Somehow everyone seems to get by.” After Friday, one of those “ambiguity triggers” — Chevron deference — is gone. What’s more, Friday’s decision might have been the first of a one-two punch. On Monday, when the court is expected to release its final decisions of the term, a previously low-key case could now take on heightened importance. In Corner Post v. Board of Governors of the Federal Reserve System, the court could potentially open a wide range of longstanding federal rules to new challenges if the court sides with Corner Post. Corner Post is asking the justices to hold that APA challenges accrue from when a would-be plaintiff is first affected — instead of from when the agency promulgated the rule. Under the decision it is seeking, a company like Corner Post that opened for business recently would be free to challenge any rule — no matter how long the rule has been in place — because the company had not previously been affected by the rule since it wasn’t in existence. In other words, if Corner Post wins on Monday and after Loper Bright, we could have a situation — depending on the specifics of the Corner Post ruling — where any newly formed company could challenge any rule that it is affected by, no matter how long the rule has been in place, and the Roberts court would get to decide, under a Chevron-free analysis, if it wants to allow the rule. The decision in Loper Bright laid bare the reality that has been true and yet that Roberts has desperately been trying to hide this term: When the conservatives want to act — when they have the desire and the votes to do so — they will act, precedent and consequences be damned. |
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