So the problem with judges deferring to the expertise and policy decisions of administrative agencies like the EPA is that they'll be following the lead of elected executives, not judges who don't like the agencies created and funded by the elected members of Congress. - GWC
...throughout Wednesday’s arguments, the conservative justices condemned Chevron as some kind of anti-accountability chaos agent that sabotages good government. Justice Brett Kavanaugh, who dissed Chevron during his audition for SCOTUS, assailed the decision’s democratic traits as a bug, not a feature. “The reality of how this works,” Kavanaugh said, “is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in—whether it’s communications law or securities law, competition law or environmental law, it goes from pillar to post.” New administrations change policy, Kavanaugh continued, “because they have disagreements with the policy of the prior administration.”
On Wednesday, the Supreme Court’s conservative supermajority signaled its intent to overturn four decades of precedent and award itself even greater authority to strike down policies that govern every conceivable aspect of life in the United States. This revolution has been years in the making, the result of a lavishly funded campaign to transform the courts into a weapon against any regulation you can think of. The environment, the economy, health care, civil rights, education: All aspects of federal governance will be in peril, subject to the whims of unelected judges with zero expertise or accountability and a distinct bias toward deregulation. Throughout the morning, SCOTUS sounded hostile to the very notion that elections have consequences—at least when a majority of justices dislike those consequences. And the court’s right flank evinced little concern about tossing 40 years of stable law, encompassing more than 17,000 federal court decisions, in favor of the Federalist Society’s preferred regime. It appears ready, in Justice Elena Kagan’s words, to “blow up one doctrine of humility, blow up another doctrine of humility, and then expect anybody to think that the courts are acting like courts.”
Wednesday’s arguments in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo target a federal regulation that prevents overfishing—though their details are largely irrelevant in light of the court’s grand, precedent-shredding ambitions. In 2020, the National Marine Fisheries Service compelled the fishing industry to help cover the cost of federal observers who monitor for overfishing. The fishers sued, drawing the government into a battle over the meaning of an overfishing statute that each side read differently.
For decades, the Supreme Court has instructed judges to use a tool called Chevron deference when faced with such ambiguities. The doctrine is rooted in a 1984 decision, Chevron v. NRDC, which involved an EPA policy that loosened restrictions on air pollution. (This policy was enacted by Justice Neil Gorsuch’s mother, EPA administrator Anne Gorsuch.) Environmental groups filed suit, but SCOTUS unanimously sided with the EPA’s approach. The court explained that agencies are staffed by experts with far more knowledge in their specific area than judges. These agencies are accountable to the president, who is in turn accountable to the citizenry. The court thus held that “it is entirely appropriate” for agencies to make the policy choices inherent in interpreting ambiguous statutes. (This notion was already deeply entrenched in statutes and precedents going back to the 1940s.)
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