By Troy Cofie
On June 28, the Supreme Court decided on Loper Bright Enterprises v. Raimondo. The case involves commercial fisheries being required to pay a fee for having monitors on the boats, which was enacted during the Trump presidency. This prompted Loper Bright Enterprises to sue the Commerce Department, stating that this was an unconstitutional power grab by the National Marine Fisheries Service.
This case led the Supreme Court to revoke a legal precedent that was in place for 40 years called the Chevron Deference (or Chevron Doctrine). The six conservative Supreme Court judges who voted to revoke the Chevron Deference stated that it was inconsistent with the Administrative Procedure Act, which regulates, in part, how federal agencies create and issue rules, and believed that it gave these agencies too much power. The dissenting Supreme Court justices, led by the liberal Justice Elena Kagan, stated that this will prevent federal agencies from interpreting ambiguities in federal law and state regulations based on those interpretations. Furthermore, judges aren’t experts when it comes to certain scientific and technical information for which federal agencies have the necessary expertise.
The Chevron Deference is a legal precedent that emerged from a 1984 case of Chevron
U.S.A. v. Natural Resources Defense Council, where the Supreme Court ruled that the judiciary should defer to federal agencies when a statute or federal law has some ambiguity in it and cannot be interpreted based on any explicit rule in the statute. The federal courts would determine the reasonability of the interpretation of federal law to see weather they’d revoke that rule. This gave federal agencies the power to make regulations that Congress didn’t explicitly name. There were still some caveats to this legal precedent where federal agencies needed a formal proceeding with the power of law, like adjudications and notice-and-comment rulemaking, to be able to enact their interpretations of the law.
The Chevron Deference was applied to environmental and resource protections, public health, financial regulation and many more regulatory objectives without needing Congress to make explicit rules in statutes. However, the courts have taken this power away from federal agencies to work on problems that Congress, frankly, is too slow to act upon.
With this recent strike down of the Chevron Doctrine, federal agencies are now limited on what they can do and how they can act based on federal law. Congress, with its increasing polarization, is becoming inert and ineffective in passing legislation. This jeopardizes critical regulations that are needed to deal with constant issues that are always evolving, making federal agencies more susceptible to the legal challenges of their regulations.
As stated by the Public Health Law Center at Mitchell Hamline School of Law, certain businesses can challenge the U.S. Food and Drug Administration’s prevention of products such as vapes from being sold. Other vulnerabilities that the FDA will face on drug approvals is that a judge with no expertise in pharmaceuticals could dictate if the FDA’s interpretation of federal laws is incorrect. Or, the U.S. Center for Disease Control and Prevention can be legally challenged in possible public health emergencies like the Covid-19 Pandemic.
This is more concerning considering that courts are being used as a political weapon to strike regulations that aren’t favorable to respective political groups, specifically conservatives. According to the Sierra Club, an Oakland-based environmental organization, in the recent court case Loper Bright Enterprises v. Raimondo, the plaintiff’s lawyers came from an organization called American for Prosperity, which is funded by a well-known oil magnate who supports anti-regulatory causes.
Similar to affirmative action and Roe v. Wade, conservatives have made it their goal to use the courts as a way to advance their own goals without going through Congress to pass those laws. It’s one of the reasons why they put so much investment into legal organizations or societies in top law schools in order to have future conservative judges who will support their agenda.
Not only does the Chevron Deference’s revocation constrain federal agencies’ capabilities, but it also makes it easier for special interest groups to strike down rules that they want gone. It jeopardizes our administrative capabilities and can make them more inert or ineffective because they’re afraid of legal challenges and courts invalidating their interpretations. Hopefully, congresspeople will make amends on the Administrative Procedure Act to allow flexibility for federal agencies, but for now, that won’t be the case.
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