In this session the Supreme Court has clearly felt its oats and dropped its fear of appearing too partisan and ideological. The overturning of Roe v. Wade was the big win, imposing minority-held sectarian religious dogma on the female citizens of Republican-controlled states. However, the Court has one more far-reaching case on which to rule this session, and it requires you to understand an arcane legal doctrine called Chevron Deference.
Chevron Deference is the principle that allows executive branch bodies such as the Environmental Protection Agency, the Federal Trade Commission, and the Internal Revenue Service to establish detailed rules that businesses and citizens must follow in cases where Congress has written vague, or even conflicting, legislation. In short, this is much of what the “Administrative State” does for a living, because Congress often passes imprecise legislation, sometimes intentionally, because it cannot reach consensus on detailed rules.
The pending Supreme Court case in question is West Virginia v. the Environmental Protection Agency, in which the authority of the EPA to promulgate detailed rules restricting greenhouse gas emissions from power plants is being challenged. The underlying laws regulating airborne pollution are quite general, mostly written in an era when “acid rain” was more of a concern than “greenhouse gases.”
The important thing today is, as I wrote about two years ago, Justice Neil Gorsuch hates the Chevron Deference doctrine. In some combination of judicial philosophy and apparent past family slight, Gorsuch had made known to Federalist Society powers-that-be Chevron Deference was in his sights, apparently his “white whale” judicial passion. The term comes from the Supreme Court’s Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. decision in 1984. In this decision, the lower courts were directed to “defer” to the Executive Branch on an administrative ruling by the Employment Opportunity Commission in a disability rights case despite imprecise Congressional legislation authorizing the commission. This case was the key precedent, conservatives say, that transfers too much of Congress’s power to the “Administrative State” and the Executive Branch of government.
How Neil Gorsuch got his seat
Recall that when Neil Gorsuch was nominated by President Trump to fill a Supreme Court vacancy in 2017, many religious conservatives were surprised, and even upset, because Gorsuch was not on the top of their list of potential justices who would reliably overturn Roe v. Wade. However, President Trump had bragged during the run-up to the 2016 election that “We’re going to have great judges, conservative, all picked by the Federalist Society.” The Federalist Society is a group of judges and lawyers who are politically and economically conservative but not necessarily religiously dogmatic. Their first choice for this open seat, successfully delayed from the Obama administration by Mitch McConnell, was the one federal judge who was best known to desire dismantling Executive Branch rules, which would then give businesses and rich individuals much more room in which to legally play. A conservative’s dream.
It is important to recognize that, as of 2017, Gorsuch could have been the only Supreme Court nomination available to the Trump Administration. Instead of playing to his religious base, Trump went for the Captain Ahab of administrative rule destruction, Neil Gorsuch. Abortion opponents would have to wait for another vacancy, a decision that ultimately worked out for them twice over.
In an earlier case this term which also involved Chevron Deference, American Hospital Association v. Becerra, the Court opted for a unanimous slap at the Department of Health and Human Services regarding hospital drug reimbursement policy. This opinion, written by Justice Kavanaugh, avoids the clear Chevron implications by simply not mentioning that important precedent, which is likely how the opinion achieved its unanimity in a fractious court. No need to pull out the big guns when HHS was clearly screwing up their job.
The possible consequences of limiting Chevron Deference
The logic of the Supreme Court in the initial Chevron case was that Congress has the Constitutional authority to clarify its own vague language if it wants to, thus it assumed at the time that the vagueness of the enacted law was intentional. However, Big Business knows that if they can get the Court to rule that Congress must enact more specific rules on things like the environment and taxes, the legislators will probably fail. Thus, fewer rules to hamper commerce.
Conservatives usually see the reduction of rules as a good thing. However, the rules usually exist precisely because those same businesses are doing things harmful to the environment, consumers, or competitor businesses. Vague rules also mean creative ways to avoid taxes.
The worst-case scenario in eliminating Chevron Deference is that agencies like the Environmental Protection Agency simply stop functioning effectively at all, unable to enforce any meaningful regulations on polluting businesses. Other regulating agencies face the same fate.
And so, the question remains — did the Court go the non-confrontational route in this more minor case in order to “go big” on the EPA case? How far will they go in ruling against the Environmental Protection Agency if Gorsuch gets his way? Watch the news closely this week, see who writes the EPA opinion, and casually name-drop the term “Chevron Deference” at your next coffee break.
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In his book, The Wrecking Crew: How Conservatives Rule, Thomas Frank suggests that large businesses have an interest in creating bad, ineffective government. If the Federal government cannot get its act together to enforce effective rules, businesses can do whatever they want. Eliminating the Chevron Deference doctrine makes the Federal government unable to create effective day-to-day rules that interpret laws. So, the laws become meaningless. (And here’s another reason why laws are often vague: Congress can set broad goals, but determining how those goals can be effectively implemented in diverse industries is incredibly complex. The means for accomplishing those goals can change over time with new technologies and novel strategies for circumventing existing language. The purpose of administrative rules is to help businesses–or citizens–comply with the broad standards set by the law. Without them, even filling out a Federal Income Tax return would be impossible. For example, when is lunch a legitimate business expense and when is it just a pleasant interlude paid for by one’s employer?)