Supreme Court wrestles with major challenges to power of federal regulators

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Conservative Supreme Court justices on Wednesday voiced support for weakening the power of federal regulators, but it was not clear whether a majority would overturn a precedent that has guided American law for four decades over everything from the safety of food and drugs to environmental protection.

Billions of dollars are potentially at stake in front of a court that, like the rest of the federal judiciary, was remade during Donald Trump’s presidency by conservative interests that were motivated as much by weakening the regulatory state as social issues including abortion.

The court heard three and a half hours of arguments in two challenges brought by commercial fishermen to a fee requirement, though the facts of their cases were barely discussed in the courtroom.

Instead, the focus was on whether the court should overturn the 1984 case colloquially known as Chevron, a decision that has been the basis for upholding a wide range of regulations public health, workplace safety and consumer protections.

Lower courts used the Chevron decision to uphold a 2020 National Marine Fisheries Service rule that herring fishermen pay for government-mandated observers who track their fish intake.

Two of Trump’s appointees, Justices Neil Gorsuch and Brett Kavanaugh led the attack on the Chevron decision, which says that when laws aren’t crystal clear, federal agencies, and the experts that serve in them, should be allowed to fill in the details as long as they come up with a reasonable interpretation.

Gorsuch noted that some judges invoke the Chevron doctrine frequently and others, not at all. “Shouldn’t that be a clue that something needs to be fixed here?” Gorsuch asked Solicitor General Elizabeth Prelogar, defending the decision on behalf of the Biden administration.

When Prelogar talked about the shock to the legal system that would result from overturning such a longstanding and far-reaching precedent, Kavanaugh suggested that Chevron is to blame for the regulatory flip-flops that happen when a president of one party replaces a president of the other.

“The reality of how this works is that Chevron itself ushers in shocks to the system every four or eight years whenever a new administration comes in,” Kavanaugh said.

The outcome seems likely to come down to Chief Justice John Roberts and Justice Amy Coney Barrett, Trump’s third appointee. Barrett suggested a “flood of litigation” challenging long-standing regulations that might result from overturning Chevron.

The court could stop short of jettisoning the Chevron decision and instead instruct lower courts to be less deferential to agencies, which might make it harder to sustain regulations. That outcome would be much less than what the conservative and business interests backing the Supreme Court cases want.

The court’s three liberal justices seemed like sure votes to preserve the decision. Justice Elena Kagan used the example of a hypothetical law dealing with artificial intelligence to say it is unreasonable to expect Congress to write laws with too much specificity, especially with the pace of technological change.

“Congress knows that there are going to be gaps because Congress can hardly see a week in the future with respect to this subject, let alone a year or a decade in the future,” Kagan said.

She added, “judges should know what they don’t know.”

Justice Ketanji Brown Jackson said getting rid of Chevron could empower judges to rule in favor of their own policy preferences when evaluating regulations.

“I’m worried about the courts becoming uber-legislators,” Jackson said.

That was a concern that Justice John Paul Stevens voiced in his opinion for the court in 1984, explaining why they should play a limited role. The court ruled 6-0, with three justices recused.

“Judges are not experts in the field, and are not part of either political branch of government,” Stevens wrote.

But the current high court, with a 6-3 conservative majority has been increasingly skeptical of the powers of federal agencies. Justices Clarence Thomas and Samuel Alito, along with Gorsuch and Kavanaugh have questioned the Chevron decision. The justices haven’t invoked Chevron since 2016, but lower courts continue to do so.

In recent years, conservative justices have shot down a vaccine mandate and Biden’s student loan forgiveness program, and also restricted the Environmental Protection Agency’s ability to fight climate change by regulating carbon dioxide emissions from power plants.

This term, the justices also are weighing challenges to aspects of the Consumer Financial Protection Bureau and the Securities and Exchange Commission.

Opponents of the Chevron doctrine argue that judges apply it too often to rubber-stamp decisions made by government bureaucrats. Judges must exercise their own authority and judgment to say what the law is, lawyer Roman Martinez said on behalf of the company that owns the Rhode Island-based Relentless and Persistence fishing boats.

“It mandates judicial bias and encourages agency overreach. And by removing key checks on executive power, it threatens individual liberty,” Martinez said.

Defending the rulings that upheld the fees, the Biden administration said that overturning the Chevron decision would produce a “convulsive shock” to the legal system.

“Chevron gives appropriate weight to the expertise, often of a scientific or technical nature, that federal agencies can bring to bear in interpreting federal statutes,” Prelogar wrote in a Supreme Court filing.

Environmental, health advocacy groups, civil rights organizations, organized labor and Democrats on the national and state level are urging the court to leave the Chevron decision in place.

Gun, e-cigarette, farm, timber and home-building groups are among the business groups supporting the fishermen. Conservative interests that also intervened in recent high court cases limiting regulation of air and water pollution are backing the fishermen as well.

The justices heard two cases on the same issue because Jackson is recused in one case, from New Jersey. She took part in it at an earlier stage when she was an appeals court judge. The full court is participating in the case from Rhode Island, which the justices added to their docket several months later.

A decision is expected by early summer.

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5 thoughts on “Supreme Court wrestles with major challenges to power of federal regulators

    1. I’d be pretty outraged if CNN were a more reliable source than InfoWars. It isn’t. And it used to be. I was a regular back in 2015. I was wrong.

      That said, you’re probably right on this one. And you’re definitely right the the Republicans having a major hand in the uniparty–at least the GOPers that the press will defend as long as there’s a safe promise of a Democrat sliding in if the said GOPer crashes and burns. However, if the journalistic outfits had even a shred of integrity, they’d dig around for other SCOTUS justices” friendships and ties and historic decisions that might influence their impartiality. They’re everywhere. But then it begs the question: should SCOTUS justices live the rest of their lies in hermetically sealed white rooms?

      As this is concerned, the legacy media mostly sharpens its knives for one justice in particular. Apparently Clarence Thomas isn’t supposed to have a social life despite being a 40-year Washington DC insider. But then, they particularly want him gone so Biden can appoint a justice to replace him. He IS, after all, pretty uppity.

      But I digress. This is definitely a problem, and I look forward to CNN applying similar scrutiny to the distant-past advocacy, speaking engagements, or judicial decisions of Sotomayor or Brown Jackson. I mean, they really didn’t hold back when RBG wore that dissent collar after #45’s election.

    2. You’re welcome to produce the information to support your accusations. Otherwise, they’re just words that wouldn’t even make Infowars. I suspect Alex Jones is a little twitchy about libel these days. Wonder why?

      I’m glad a protest collar is the same as being bought and sold like Thomas … who hasn’t even bothered to be a good justice. It’s been amazing to track how is descent into being a crank has coincided with the money poured into his family. I mean, he was known for being as useful as the furniture for several years there, asking no questions and contributing little publicly.

      Just recall – I’m the one who credited Mitch McConnell for packing the Supreme Court. He played it well, to the detriment of people like you or me for 50 years. I’m just surprised you’re not so upset about it given the composition of who was placed there. It’s almost as though this uniparty nonsense is just that … nonsense.

      That’s right, the Democrats are just as bad. Keep telling yourself that. False equivalence and projection are sure something.

  1. Joe, the reason I continue to target you specifically.is because I don’t believe for a minute you care about any of the issues you routinely raise here on IBJ. It just vexes you that Republicans do it–and certain gadfly-to-the-establishment Republicans more than anything. In fact, the gadfly-to-the-establishment Dems are exceedingly rare (and usually snap into place if the Deep State turns up the heat), but Sinema and RFK Jr and Manchin remain more compelling figures than McConnell or Paul Ryan or Liz Cheney or the other failures. Yes, that’s the attitude I retain toward McConnell–not a stupid guy, and definitely a brilliant political strategist. But he’s a Unipartyist first and foremost; and when Nikki Haley drops out, he will work some of his master strategy to help Biden’s re-election this fall, just as he did in 2022.

    If there were truly any principles by which you abide, you would see the principles themselves as sacred and would be equally angry when, say, Tara Reide accuses Joe Biden of harassment (with documented newsmedia footage of her accusations originating back in the mid 1990s) or Joe Biden’s financial interests in Ukrainian energy make Thomas’s weekend yacht trips with a right-wing buddy (who had no stake in any SCOTUS cases) look like elementary school kickball captain stuff.

    But principles are nothing if “the ends justify the means”–which is the consequentialist way of thinking of most hardened leftist. “By any means necessary” BAMN a popular acronym among violent radical groups in the Bay Area. And thus we see the uniparty’s hardened power and control of the corporations–a control that certainly evokes a left-wing mustachioed Austrian painters approach to national socialism 70 years ago–doing what it can to impose ideology, including censorship, obfuscation or suppression of damaging facts, and imprisonment of political dissidents.

    Slobbering Dem partisans love the uniparty.

    1. I don’t care at all about better schools or getting the homeless off the streets or local control or gerrymandering? That’s fun. Then again I’m not the one who in every response wanders off to talk about Portland or somewhere far away from Indiana.

      What vexes me is that the Republican Party decided that rather than figure out to compete in the 21st century, they decided to instead throw in to a bunch of religious extremists and folks who lost their minds when Americans elected a black man the President. It’s little wonder the leader of their movement is the one who made his first issue …denying that Obama was actually an American.

      Your beloved uniparty has figured out they can harness the anger of those folks as long as they give the Christian Nationalists what they want (women like you being mobile nursery’s devoid of rights chief among them) and they keep the focus on giving the base what they want (a minority to blame all their problems on, like the LGBTQ folks or people coming here over the border).

      Do they have any solutions to their issues? Of course not! You don’t see Mike Johnson proposing increasing funding to process the asylum claims to either allow people to stay or go back home. They want to just scare people fleeing wretched situations away by taking their kids away and losing them. How Christian of them. And that’s to say nothing that their foreign policy ideas are just flat stupid, ignore anything learned the last 100 years, and are going to get people killed in a war.

      What’s the cost for those social issues? Cutting any government spending that could possibly ever benefit a person like you or me. The uniparty wants to roll back anything post-FDR, and they’re using folks motivated on social issues to do it. They create fake deficit and budget problems and claim the only fix is to cut spending to benefit the people who voted for them when the root of the issue is their own tax cuts for the uniparty.

      You are either unaware of the higher level game being played or you’re fully aware and supportive of it.

      Meanwhile, since these are decidedly minority positions nationally, the only way to perpetuate that position is to make sure people don’t have a say. Don’t let presidential elections mean anything. Don’t abide the results of elections unless you win and claim they’re all rigged.

      Could I share a BBC link to Grassley’s release of the memo you reference? Sure. But you’d attack the source and ignore the part where even the “source” can’t vouch for how good the information is. So why bother? Next you’d probably repeat the Russian propaganda about Burisma. (Why do Republicans so love Russia and Hungary? That couldn’t be because that’s the type of fauxmocracy they want, could it?)

      Here’s the thing – if you actually cared about the uniparty, you’d pick and choose. You’d side with Republicans and Democrats. You complain I don’t so, yet ignore the root cause which is that the Republican Party lost their blasted minds and is a collection of opportunists and fools. I was all for Trump fixing infrastructure or banning TikTok; it’s not my fault that he’s got the attention span of a 3 year old and failed on both counts. I’m all for a Republican Party serious about government spending, but that’s would require both spending cuts AND rolling back some of those tax cuts they gave the rich. I’m for that Republican replacement for Obamacare that will be both cheaper and better that was promised nearly a decade ago … I’m sure they will show us the details any day now …

      Just remember Trump’s response when Biden proposed his infrastructure plan. “Don’t vote for it, it’s bad for me if someone else does in a few months what I failed on.” Never mind it might be good for Americans, it’s all about Trump. Yawn.

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