The reversal of the Chevron case by Young Turks, angry old men and the Supreme Court’s conservative majority, Chief Justice John Roberts, checked an important box on the Federalist Society’s checklist for remaking America.
All revolutions must begin with sowing chaos and confusion, and this will come from the reversal of Chevron USA and the Natural Resources Defense Council, which established a 40-year precedent of respecting the expertise of federal agencies.
A decades-old doctrine known as the “Chevron deference” assumes that federal agencies know what they’re doing when courts enforce regulations in their area of expertise. Therefore, when a court determines that there is some ambiguity in a statute that governs the corporation, the court must defer to the corporation’s expertise.
It might seem like common sense to trust that an agency like the U.S. Fish and Wildlife Service would know more about the proper classification of the western gray squirrel — an example given by the dissenting Justice Elena Kagan. But common sense never stands in the way of revolution.
The 1984 case of Chevron did not create a concept of deferral of agency expertise. Agencies have existed in our country since the 18th century, but their rise during the New Deal era under President Franklin Delano Roosevelt planted the seeds for many progressive policies that conservatives call “administrative government.”
The courts of the day—including the Supreme Court—wrestled with the legal issues before them. During that period, in Chief Justice Roberts’ majority opinion, the Court deferred to Gray v. Agency deference has also been used in cases like Powell’s. Was a Hearst “reporter” an employee within the definition of the National Labor Relations Board? Then, as now, agencies acted at the macro and micro level to act as a check against purely profit-driven policies that favored commercial profit over the protection of consumers, workers, species, and the environment.
But not always. Ironically, the Chevron case deferred to the Reagan Environmental Protection Agency’s pro-pollution view of the Clean Air Act and allowed for the easing of emissions standards. We can all remember Reagan as the nation and the world grapple with historically life-threatening heat waves. But as described Charlie Savage for The New York TimesA conservative campaign against the potential anti-business profit effects of agency regulations has long been active.
A once-confidential memo written for the US Chamber of Commerce by a tobacco industry lawyer in 1971 “proposed a plan to change public opinion and build political leverage to roll back the executive state,” he reports. (The lawyer behind it, Lewis F. Powell Jr., would soon be appointed to the Supreme Court by President Richard M. Nixon.)
Savage describes how this movement grew over the next decade in the form of the Federalist Society, which nurtured young conservative lawyers for decades—an effort that eventually led to the current conservative majority on SCOTUS (among the majority was Justice Neil Gorsuch, whose mother was an opponent. The EPA’s regulatory chief under Reagan).
Gorsuch’s concurrence emerges when he writes, “The story of Chevron.”[a] Revolution has become the status quo. As always, Republican extremists tend to project their own motivations onto others. It was Gorsuch who helped lead a revolution. It is nothing less than a revolution The end of staringJurisprudential doctrine of deciding new cases based on old cases. The The Chevron case has been in effect for over 40 years and is one of the most cited cases in American law.
But there is no reason to expect this Supreme Court to be put off by the prospect of overturning 40 years of precedent. Roe v. which has been around for almost half a century. There is no problem in removing the hunt. As Justice Kagan said in his dissent from Chevron’s reversal: “The majority abhors control and clings to power.”
Perhaps some kind of multigenerational conservative shock from the New Deal is fueling their obsession with removing the protections of the executive state. But like any trauma, the consequences are disproportionate and have a long-term devastating effect.
As Justice Kagan noted, the reversal would cause a “massive shock” to the legal system. cause “Some agency interpretations were never challenged under Chevron [but which] Now there will be.” Some of Judge Kagan’s examples point to the ludicrous nature of judges deciding questions like when an alpha amino acid polymer qualifies as a “protein,” or the earlier example of whether a particular species of gray squirrel is different based on its habitat. Population But that may be the point. .After all, it’s a much bigger job to replace all the career staff in agencies that do the bidding of a conservative administration than to have a staff of a few hundred conservative judges.
Chevron’s reversal of history promises the Roberts Court as the court that sought to consolidate the reins of power over Americans among nine unelected public officials. But its place in history, by registering public confidence in the high court, can reform the court itself by expanding its size and diluting its power.
If those much-needed changes are enacted, Chief Justice Roberts and his conservative majority may come up with a quote from the Greek tragedian “Euripides”: “Those whom God destroys first go mad.” This Supreme Court is power hungry. That insanity may prove to be their undoing, but it certainly proves to nullify many valuable rights and protections that remain.
Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno.
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