Put a Tiger in Your Tank… Or Let Him Run Wild?

Put a Tiger in Your Tank… Or Let Him Run Wild?

Purging Experts and the “Deep State” from Government?

If you are a large corporation, you almost always want to rein in government regulation and minimize taxes. You got your tax wish with Trump’s 2017 deficit-busting slash of the federal corporate tax rate from 35% to 21%. Now if only corporate America could do away with federal administrative agencies protecting consumers, requiring public companies to file complete and accurate statements to the public, supporting workers trying to unionize, supervise food and drug sales and quality, protect the public from pollution, greenhouse gas emissions and other environmental damage, etc. Well, on January 17th, we got one more example on how the MAGA movement has gone beyond Congress and state legislatures through a rightwing set of Supreme Court Trump appointments to act as a de facto legislature, without limits, to implement that agenda. The oral arguments before the Court on January 16th presented just such an opportunity.

Writing for CNN on January 17th, Joan Biskupic, sets the stage: “Wealthy business entities and conservative advocates have been building toward this Supreme Court moment for decades. And now with three appointees of former President Donald Trump on the bench, their goal appears within reach, and the regulatory world could be turned on its head… Justices who’ve been gradually constraining federal regulators sounded ready during arguments on Wednesday [1/16] to make their most substantial move yet and gut a 1984 ruling that has given US agencies wide latitude over policy, from environmental protection to workplace safety.

“Reversal of the so-called Chevron deference approach was a priority for the judicial selection team that served Trump – on par with some right-wing activists’ quest for reversal of constitutional abortion rights. The reconstituted Supreme Court delivered on that agenda item in 2022 when it overturned Roe v. Wade.

“Former White House counsel Don McGahn, who controlled Trump’s judicial selections, regularly touted the administration’s anti-regulation agenda. He was especially drawn to the first two Trump appointees, Neil Gorsuch and Brett Kavanaugh, for their records in that regard… ‘There’s a coherent plan here, where actually the judicial selection and the deregulatory effort are really the flip side of the same coin,’ McGahn said at a 2018 appearance…McGahn also remarked publicly of Gorsuch’s personal history. The Chevron case traces to the early 1980s tenure of Anne Gorsuch [Neil’s mother], then the administrator of the Environmental Protection Agency, who cut back on air and water quality initiatives in the Reagan era of deregulation.” MAGA conservatives want to end courts’ deference to statutory interpretations given by specialized federal administrative agencies created by Congress.

Anti-Deep State, MAGA believers have called for the abolition of the IRS, Dept of Education and the EPA, among many administrative agencies created by Congress. And as Adam Liptak, writing for The Morning news feed from the January 18th NY Times, tells us, they just might be getting their way: “Now that abortion is restricted and affirmative action is hobbled, the conservative legal movement has set its sights on a third precedent: Chevron v. Natural Resources Defense Council… The 1984 decision, one of the most cited in American law but largely unknown to the public, bolstered the power of executive agencies that regulate the environment, the marketplace, the work force, the airwaves and countless other aspects of modern life. Overturning it has been a key goal of the right and is part of a project to demolish the ‘administrative state.’

“A decision rejecting Chevron would threaten regulations covering — just for starters — health care, consumer safety, government benefit programs and climate change… After three and a half hours of lively arguments on Wednesday [1/16] that appeared to divide the justices along the usual lines, it seemed that the court’s conservative majority was prepared to limit or even eliminate the precedent.

“Chevron — and bear with me here, this will hurt only for a minute — established the principle that courts must defer to agencies’ reasonable interpretations of ambiguous statutes. The theory is that agencies have more expertise than judges, are more accountable to voters and are better able to establish uniform national policies. ‘Judges are not experts in the field, and are not part of either political branch of the government,’ Justice John Paul Stevens wrote in 1984 for a unanimous court (though three of its justices recused for reasons of health or financial conflict). Stevens later said of the opinion, which was easily his most influential, that it was ‘simply a restatement of existing law.’… ‘If Chevron amounted to a revolution, it seems almost everyone missed it,’ Justice Neil Gorsuch, the harshest critic of the doctrine on the current court, wrote in 2022, saying that courts had read it too broadly.”

Even rightwing Supreme Court Associate Justice, Antonin Scalia, felt that given the required expertise in a modern world, “I tend to think, however, that in the long run Chevron [deference] will endure and be given its full scope-not so much because it represents a rule that is easier to follow and thus easier to predict (though that is true enough), but because it more accurately reflects the reality of government, and thus more adequately serves its needs.” Duke Law Journal, June 1989.

But if the rightwing cadre of Trump appointees are leaning to repeal the Chevron deference entirely, is there a middle ground that could work? Writing for the January 18th Journal of the American Bar Assn., Debra Cassens Weiss, explains:” Conservative justices on the U.S. Supreme Court appeared ready to limit or overturn the 1984 decision that established Chevron deference, the principle that federal courts should defer to reasonable agency interpretations of ambiguous laws, according to media coverage of oral arguments Wednesday [1/16].

“One option, explored by Justice Amy Coney Barrett, was ‘Kisorizing’ the Chevron doctrine, which was a reference to the 2019 decision in Kisor v. Wilkie that trimmed the use of Auer deference, Law360 reports… Auer deference is the principle that courts should defer to an agency’s reasonable interpretation of ambiguous regulations… Justice Elena Kagan, author of the Kisor opinion, ‘promptly adopted’ Barrett’s term, according to Law360. She and the high court’s two other liberal justices expressed support for continuing to rely on the doctrine because agencies have the expertise to interpret ambiguous laws… Justice Ketanji Brown Jackson suggested that overturning Chevron deference could turn courts into ‘uber-legislators.’... ‘My concern is that if we take away something like Chevron, the court will then suddenly become a policymaker,’ Jackson said.

“Justice Brett Kavanaugh saw a downside to keeping Chevron deference in place, according to the news coverage by the New York Times, SCOTUSblog, Reuters and the Washington Post… He said Chevron deference ‘ushers in shocks to the system every four or eight years when a new administration comes in’ and adopts ‘massive change’ in areas such as securities, communications and environmental laws.” But a fact-averse, gridlocked Congress is not the obvious answer. Courts vainly seeking a clear legislative intent could be equally frustrating.

“And to tell the truth, the quest for the ‘genuine’ legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate. If that is the principal function to be served, Chevron is unquestionably better than what preceded it. Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known.” Scalia.

I’m Peter Dekom, and in a highly complex modern world where much understanding requires expertise, the Supreme Court needs to be very careful not to throw the baby out with the bathwater.