These Supreme Court cases could 'prove profoundly destabilizing': legal expert

On Wednesday, January 17, the U.S. Supreme Court heard oral arguments in two companion cases dealing with the "Chevron deference" standard: Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.

The "Chevron deference" standard was established 40 years ago with the High Court's ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, which essentially said that government agencies are allowed to regulate businesses and rely on expertise in doing so. The "deference" part refers to "deferring" to experts hired by a regulatory department such as the Environmental Protection Agency (EPA).

In an article published by The Bulwark on January 18, law professor and former federal prosecution Kimberly Wehle argues that if the Roberts Court rolls back "Chevron deference," it could seriously undermine the regulation of businesses.

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Wehle notes that Loper Bright "asks the Court to overrule" Chevron.

"In that 1984 case," Wehle explains, "the Supreme Court considered whether the Environmental Protection Agency — which was then headed by Justice Neil Gorsuch's mother, Anne Gorsuch, under President Ronald Reagan — was functioning within its statutory authority in enacting a rule under the Clean Air Act that essentially benefited polluters. Normally, courts decide questions of law, and the challengers to the EPA's regulation in that case urged that the Supreme Court determine what the Clean Air Act means. The Supreme Court disagreed, nodding instead to the discretion of the EPA."

Wehle adds, "The Court held that if Congress makes clear in a statute what a particular term means — in Chevron, the term under contention was 'stationary source' — that's the end of the case; the EPA and the courts must just follow Congress' direction."

The legal expert notes that billionaire Charles Koch and his network are "reportedly behind the Loper Bright lawsuit."

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"If the conservative majority overrules Chevron — which Justices Gorsuch and Brett Kavanaugh, at a minimum, seem poised to do after oral argument — the new decision-makers won't be agency personnel who have deep expertise in things like drug labeling, environmental protections, financial markets, the shipping and trucking industries, etc. But while conservatives hope that Congress will step up and fulfill its constitutional role, taking over that responsibility, that hardly seems likely — remember that Congress, in 2023, managed to pass only 27 bills into law. Instead, the responsibility will fall upon the people in black robes with no expertise whatsoever."

Wehle describesLoper Bright as the latest example of the "judicial power grab that Senate Minority Leader Mitch McConnell has been playing for years."

"Refashioning the regulatory state is another big item on the conservative wish list," the law professor observes. "But it will likely prove to be not a nod to congressional power, but a checkmate on Congress, who created the statute that gave the agency its power in the first place. The end result? Deregulation that could not happen through Congress or the presidency, but will happen instead through the courts — in ways that could prove profoundly destabilizing for industries and citizens alike."

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Kimberly Wehle's full article for The Bulwark is available at this link.