This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
Several decisions from this past Supreme Court term will radically restructure the balance of power between government agencies and corporations, between courts and congress, and between ordinary people and billionaires.
The court’s decision in Loper Bright, for instance—the so-called Chevron case—overturned 40 years of administrative law precedent in order to hobble government agencies attempting to regulate everything from food safety to air travel to the environment.
On a recent episode of Amicus, Dahlia Lithwick spoke with Lisa Heinzerling, a Georgetown Law professor and former Environmental Protection Agency official who specializes in administrative law. Together, they examined the fundamental power shift carried out by the conservative majority this past term in overturning Chevron deference, a doctrine that required courts to defer to federal agencies’ own interpretations of ambiguous statutes. The enormity of the challenge for government regulators, experts, and advocates cannot be overstated. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: Justice Kagan has been sounding the alarm about what’s happening to Chevron and the Hungry Hungry Hippos approach the court has had to administrative law in Loper Bright. In her dissent, Kagan writes: “In one fell swoop the majority today gives itself exclusive power over every open issue, no matter how expertise-driven or policy laden, involving the meaning of regulatory law.” And then, in a gut punch of a sentence, she adds: “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.” I hear an echo there of Kagan writing in a 2019 case where she warned us that if this incredibly narrow view of agency authority were to be allowed to prevail, “most of government is unconstitutional.”
I’d love for you to explore this theme of judges as free-range administrative czars—which we saw in the Ohio EPA case, and in the bump-stock case. We see it in the mifepristone case, and in Jarkesy from this year, the Clean Water Act case last year, and the Clean Air Act case from two years ago. This term in the aggregate feels like an invitation for not just endless, infinite litigation but endless, infinite judicial supplanting of information, of knowledge, of expertise, of science with the justices’ own feelings. And that supplanting only ratchets one way.
Lisa Heinzerling: Yes. That last part, about ratcheting in one way, is really important because Chevron itself could go both ways. It became more deregulatory in its later years, but it could also mean that a president of either party could really make a mark in terms of regulatory policy and their political agenda. But now you have this combination of the courts being in charge and the courts being motivated by an anti-government impulse. That impulse is the theme that runs through these cases: this distaste of the so-called bureaucrats, this distaste of the agencies and underlying it—less explicitly acknowledged but also true—this distaste of Congress. The courts are really putting themselves in charge, not only by citing some words in the Administrative Procedure Act or the Constitution for this proposition or this power grab, but also by sending a signal with their attitude toward government. They don’t like government very much. They’re creating chaos in some of these decisions but not allowing anybody to create order.
Lithwick: Is one of the fixes—assuming we can’t do structural court reform in the next five minutes—that Congress could codify Chevron again by just rewriting the Administrative Procedure Act?
Heinzerling: Technically, you should be able to draw that conclusion from Loper Bright. They didn’t rule on constitutional grounds. They ruled on the grounds of what the Administrative Procedure Act says. So it’s plausible to argue Congress could fix that. And they wouldn’t need to reify all of Chevron and the whole precedent around every single detail. They’d need to give some deference to agencies and their interpretations in principle. Congress can do that.
My worry is that the mood of the court and some of the lower courts is such that they won’t allow it. Chief Justice Roberts has an idea about what courts do and what courts have always done and what courts appropriately do, and that may not have been part of the so-called holding or the reason for the legal determination he made in Loper Bright, but boy, is it part of the background. I worry that they might take aim even at a new statute that codified Chevron. Doesn’t mean Congress shouldn’t try. Doesn’t mean that it’ll happen for sure, but the mood is unmistakable.
Lithwick: Mike Podhorzer made the good point, when Loper Bright came down, that there is this intimation that this is a huge power shift away from federal agencies, away from Congress and into the lap of the court—but when the courts grab power away from the regulatory agencies, the big winner isn’t just the courts. If you’re really talking about how we’re going to address the climate crisis and food safety and homelessness—as Justice Sotomayor brings up in a case about why people are sleeping in parks—and clean water and transportation safety and drug regulation, it’s not as though the ultimate regulator is actually the courts.
The real beneficiaries are the billionaires who will dictate what those future regulations look like. In other words, this is conferring power nominally to the courts, but isn’t it really just conferring power on industries and corporations that are going to be able to use huge financial advantages to dominate the regulatory and rulemaking and enforcement process? It seems to me that this is not just a win for the courts; this is just a big win for the folks who didn’t want to be regulated and who are now going to be able to write their own rules.
Heinzerling: It’s a good point to end on and to emphasize. One way of putting what the court is doing is: It’s just serving as the vehicle to deliver those benefits to the billionaires. Could be any of the branches of this government. Right now it’s the Supreme Court.
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