Stupidity Amid Complexity

If you think that judges shouldn’t issue medical opinions or that legislators are often woefully unprepared to deal with complex technological issues – outside of patent courts – unfortunately, you would be right. We have the most recent example of a religious fundamentalist evangelical judge sitting in a Texas federal court deciding that the FDA failed properly to vet the abortion drug, mifepristone… after two decades of with an excellent safety record. The judge, Matthew Kacsmaryk, had no medical credentials or expertise; the plaintiffs “judge shopped” to ensure the result they sought at the trial court.

In a complex society – with issues ranging from PhD level macro-economics to some of the most difficult STEM subjects imaginable – Congress began approving federal administrative agencies with limited judicial power to deal with the increasingly specialized expertise that was not part of normal legislators’ experience. The umbrella enabling statute would set the parameters for such a federal agency (in the executive branch) and leave implementation to the obvious experts. You can tell when this expertise is not accepted when politicians decry “bureaucrats” and a “deep state” running our country. If you substitute “highly trained, experienced experts” for “bureaucrats,” you can measure the absurdity of that position.

As we witnessed during the pandemic, people with either strong religious beliefs or followers of inane conspiracy theories were increasingly ready to foist their groundless “cures” on, well, everybody… with dangerous consequences. Politicians in jurisdictions that fostered such beliefs were quick to cater to this anti-elite, anti-science constituency. Congressional graduates from the best colleges and universities were prepared to put aside their education and simply adopt a catchy phrase – like freedom to decide personal medical treatments even if those around those making the unscientific choice were putting those around them at severe risk – and give their constituents what they wanted, even confirming judges with the same anti-science bent. Other countries looked on in puzzled amazement at our stupidity. The United States had one of the worse COVID infection/fatality rate on earth.

In an era where science was revered, the US Supreme Court decided (1984) Chevron vs. Natural Resources Defense Council. Since Congress was not capable of predetermining complex issues requiring deep experience and training in a very specific field, the Court rules that while a government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable. After all, if Congress believed that an agency exceeded its statutory authority, they could always pass limiting legislation.

But as the populist MAGA GOP in Congress and the judicial appointees during the last administration have elevated killing off this mythical “deep state,” it appears that we may have a ship of under-educated fools focused on substituting religious beliefs and conspiracy theories for scientific faces. On May 1st, the Supreme Court accepted Loper Bright Enterprises vs. Raimondo, an innocent-looking case involving herring fishermen and the requirement by the National Marine Fisheries Service that they pay the salaries of government monitors to ensure compliance with regulations that protect overfished and endangered species…

“From little herrings, whale-sized consequences for our world might grow… The petitioners seek to overturn or greatly limit a 39-year-old Supreme Court case, Chevron vs. Natural Resources Defense Council. That ruling said that if a federal law is silent or ambiguous on a specific question, courts should defer to government agencies’ interpretation of the statute.

“That’s important because Congress, in enacting a law, can rarely if ever predict every situation that might arise in applying or enforcing it. So it must leave details for expert administrators to fill in… Think about how the Environmental Protection Agency, created in 1970, has developed rules to combat the causes and harms of climate change, which were understood poorly if at all until decades later. Or how the Occupational Safety and Health Administration must adapt and develop rules to protect workers in industries that didn’t even exist at its birth in 1970.

“Eliminating or curbing the power of federal agencies to interpret and enforce federal laws in rapidly changing circumstances, as the court is being asked to do, would implement a long-standing Republican agenda: to shrink government and return to the days of laissez-faire capitalism, before child labor laws and Social Security created a broad social safety net almost a century ago.

“In recent years, as a gridlocked Congress enacts ever fewer laws, it has been largely left to federal agencies to enforce those laws in unforeseen situations… With federal agencies crippled in playing that indispensable role, whole industries would be unleashed to operate free from mandates that protect clean air and water; banks and predatory lenders could operate unconstrained by requirements that protect consumers; and the wealthy and powerful would make their own rules.

The easiest way for powerful economic and political interests to weaken regulatory constraints is to denigrate scientific expertise and truth itself. And the best way for them to achieve that is to enable judges to substitute their personal opinions for the decisions of expert administrators charged with carrying out Congress’ objectives. Hamstringing the agencies opens the door to what Kellyanne Conway, former President Trump’s senior counselor, famously called ‘alternative facts .’” Writing for the May 3rd Los Angeles Times, Laurence H. Tribe, the Carl M. Loeb University Professor of Constitutional Law emeritus at Harvard University and Dennis Aftergut, a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy. The unfortunate trend of overruling science with conspiracy theories and “alternative fact” can actually kill a whole lot of people.

I’m Peter Dekom, and the next time you need a surgical procedure, would you rather have a judge or a congressperson hold that scalpel… or trained surgeon?