Replacing the Administrative State of Experts with the Layman’s Courts of Angry Biased Judges

The United States has become the land of powerful, culturally biased amateurs, railing against educated “elites” and those who believe major policy decisions should be anchored in facts and scientific probabilities. Many believe that they can vote and revoke the laws of physics, decades of massive scientific and medical research and experience, with rulings based instead on religious beliefs or conspiracy theories. Or that their politically driven judicial appointments can do the dirty work for them. The 2022 Dobbs v. Jackson Women's Health Organization Supreme Court reversal of Roe vs Wade gave these zealous extremists hope that all of what they believed were anti-Christian laws and decisions could be eliminated. Science be damned!

These anti-elitists insist that their beliefs can be forced on fact-driven experts and the majority of Americans who know better, even when such mandates decimate personal choice and individual freedom. Unfortunately, Mother Nature doesn’t care. If humanity opts for self-destruction, so what; Nature started with nothing and clearly can start over again. Only the hardy cockroaches are smiling… right along with the antivaxxers, DEI opponents and the climate change deniers.

We’ve seen a lowly, deeply evangelically-driven federal judge in Amarillo, Texas, U.S. District Judge Matthew Kacsmaryk, challenged two decades of medical safety for an FDA-approved birth control pill – mifepristone – by banning the drug in 2022, overruling that long-standing FDA approval (FDA v. Alliance for Hippocratic Medicine). While the Supreme Court threw out his decision, it did so simply by stating the plaintiffs lacked standing to sue. The merits of the case were not addressed. Kacsmaryk seemed to ignore a 1984 Supreme Court ruling, in Chevron USA v. National Resources Defense Council, that held where there was ambiguity in statutes that accorded administrative agencies with the power to implement Congress’ mandates in specialized arenas, courts should defer to the agency experts’ interpretation of that ambiguity: the “Chevron deference.”

But in June, “[the Supreme Court], in Loper Bright Enterprises v. Raimondo, ruled that Chevron ‘defies the command’ of the Administrative Procedure Act, requiring that ‘the reviewing court’ rule on issues of fact and questions of law relating to agencies… [Their] landmark ruling overturning Chevron deference has introduced vulnerability into the power of federal agencies—but attorneys are conflicted about the significance of the outcome, which they say may be much ado about nothing…

“The now-defunct doctrine, however, had not been utilized widely in recent years. One of the last cases affirming the Chevron doctrine was 11 years ago in City of Arlington v. FCC, relating to the Federal Communications Commission’s interpretation of the 1996 Telecommunications Act amendments to the Federal Communications Act, says Will Dodge, managing partner and CEO of [the law firm of] Downs Rachlin Martin in Burlington, Vermont.

“This changed following a recent fishing lawsuit. In Loper, fishing companies challenged the enforcement of fishing limits set by the National Marine Fisheries Service, which falls under the National Oceanic and Atmospheric Administration. The plaintiffs argued that the costs associated with government-required monitors on commercial fishing boats were unfairly burdensome. The core issue: the interpretation of who should bear these monitoring costs.

“The Supreme Court ruled in favor of the fishermen, deciding that courts shouldn’t defer to an agency’s interpretation and should instead exercise independent judgment.” Danielle Braff, writing for the October 14th Journal of the American Bar Assn. The law Chevron deference had been so ingrained in legal practice that litigation challenging that Chevron deference was considered a futile waste of time. But that was before Donald Trump’s judicial appointments, including the reconfigured US Supreme Court now with a 6-3 rightwing majority, offered Luddites, religious extremists, gunowners who cared little for gun safety, the January 6th Capitol insurrectionists and even white Christian nationalists an opportunity to impose their will, their vision for American, on everyone.

The more moderate view is that Loper may force clearer administrative rulings with less political bias. “Some attorneys are optimistic that going forward, the litigation playing field between regulators and the regulated has been leveled. For the last 40 years, says James Tysse, a Supreme Court and appellate partner with Akin Gump Strauss Hauer & Field, agencies had the primary power of interpreting statutes that were less than crystal clear. But after Loper Bright, he says, courts now have the responsibility to determine what interpretation is best.

“‘For clients on the fence about filing suit, we are telling them that their likelihood of success has just increased,’ Tysse says… They can even challenge older regulations, including potentially previously affirmed as reasonable cases under Chevron, he adds.” ABA Journal. Maybe moderation will rise, or Loper just might have opened the door to rich corporate interests who oppose financial or environmental limits and white Christian nationalists to press their beliefs as mandates on us all.

I’m Peter Dekom, and while I can hope for moderation, the decisions of the Trump judicial appointees strongly suggest otherwise.