Jack Schlossberg on the Supreme Court’s Recent Loper Bright Enterprises v. Raimondo Ruling

What’s beneath the surface is far more… fishy. 😉

It was the perfect setup. Conservative legal activists have been plotting for years, waiting for their moment. With the right set of facts and 6-3 majority on the bench, they backed the fishermen’s case, and the Roberts Court executed the master plan.

In Loper, Chief Justice John Roberts, writing for the majority, declared the death of decades-old precedent, a legal doctrine known as “Chevron deference” (named for the 1984 case Chevron v. NRDC). For decades, Chevron deference shaped the inner workings of our government. Here’s how.

Let’s say Congress writes a law—call it the Clean Air Act. The act creates the Environmental Protection Agency (EPA), authorizing it to regulate air pollution. It gives many specific instructions for what to do, but intentionally leaves ambiguity in its language to allow the agency to fill the gap down the line, knowing the issues involved are fact-intensive and scientific.

Then, the EPA issues regulations like miles-per-gallon requirements for cars, permitting for oil and gas drilling, pollution controls for power plants, etc. When a new technology comes along, the agency updates its rules accordingly.

One day, big business challenges that rule in court, arguing the EPA is violating its mandate from Congress, just like the fishermen did in Loper. No matter the specific regulation in question, the analysis depends on an interpretation of the statutory language in the act and Congressional intent.

But the outcome will be determined by a different variable. Who should decide? Should six unelected life-term justices decide? Or should the EPA, part of the executive branch, answerable to the democratically-elected president, staffed with scientists and experts, be the one to do it?

Well, for the last 40 years, under Chevron deference, courts have defered to agencies when there is ambiguity in the law. Why? Because agencies are better equipped to answer specific technical questions than judges are. Who would you rather write rules to regulate AI, a judge or a computer scientist?

Conservative legal activists have been after Chevron for years. They tell a different story: For them, federal agencies are a grotesque modern phenomenon, the root of all our problems. The administrative state has expanded too much, they’ll say, and it was better in the 1930s, before we had any of it.