This week we talk about the APA, the Supreme Court, and Marbury v. Madison.
We also discuss the Chevron Doctrine, government agencies, and the administrative state.
Recommended Book: A City on Mars by Kelly and Zach Weinersmith
Transcript
The Supreme Court's 1803 Marbury v. Madison decision was pivotal to US legal theory and practice because it established the concept of judicial review, which essentially said that US courts could assess laws passed through the typical legislative system, through Congress, and, if they determined those laws were unconstitutional, strike them down.
This was a huge rewiring of the US government, as it gave a substantial amount of new power to the court system, and it provided a new check on the legislative system that recentered the Constitution as the source of all law; if the judges decided new laws didn't line up with that original Constitutional intent, according to their interpretation of said intent, the new laws would be a no-go.
This is true of statutes that declare policy, as well, which are generally part of the law-making process, and also help shape regulations, guidelines, and other things of that nature—the fuzzier stuff that goes on to effect things, even when some of those fuzzy statements and implications aren't formalized in law, yet.
So any and all of this stuff that Congress decides on could, at some point, be looked into by the US court system, and that system can say, nope, that doesn't line up with what's in the Constitution—it's not Constitutional—and that means the Constitution, following Marbury v. Madison, became a lot more of a legal reality in the country, rather than just a collection of principles and ideals, which is how some legislators and legal scholars thought of it before this ruling.
Within this same entwined governmental/legal system, Congress sometimes delegates policy decision-making powers to US agencies, allowing them to make legal decisions in cases where Congress passes a law that it is some way ambiguous—saying that there need to be emissions standards on cars, for instance, but leaving the task of coming up with those standards to the Environmental Protection Agency, the EPA.
This delegation ability was reinforced by a 1984 Supreme Court decision, Chevron v. The Natural Resources Defense Council, today usually referred to as "Chevron" or the "Chevron decision," the justices unanimously deciding against the DC judicial circuit's ability to set government policy, reminding those justices that judges are unelected officials and thus shouldn't be making law, and that when Congress isn't specific enough in their lawmaking, this can represent an implicit desire for the agencies in charge of implementing the relevant laws in the real world to figure out the specifics for themselves; after all, they would probably know better how to do so than a bunch of lawmakers who are not experts on the subject matter in question.
That case also limited the US court system's ability to review an agency's interpretation of the law, which in that specific case meant that judges shouldn't have the right to look into how US agencies decide to do things, willy-nilly, just because they don't like the outcome.
Instead, they have to adhere to what has become known as the Chevron Doctrine or Chevron Deference, which says, first, the judges have to decide if Congress was clear on the matter—and if so, they go with what Congress said, no questions asked. If Congress was unclear on something, though, then they have to decide if the agency in charge of executing Congress' decision has made reasonable and permissible decisions on that implementation; and if the answer is yes in both cases, the court must accept the agency's decision on the matter.
If not, though, then the court can step in and make some kind of judgement; but it's a fairly ponderous process to get to that point, because of this doctrine, and they will almost always defer to the decision made by the relevant agency, because of that 1980s-era court case.
The Chevron decision is generally considered to be one of the most formative in modern case-law because it empowered US agencies with all sorts of responsibilities and rights they wouldn't have otherwise enjoyed.
The Chevron case, itself, was predicated on a disagreement about the 1963 Clean Air Act, which failed to specifically define what "source" meant, in terms of emitted pollutants; Congress didn't specify. And this ambiguity led to a clarification in 1981, by then-President Reagan's EPA, that allowed companies to bypass the Act's procedures by building-out new, highly polluting components to their plants and factories, as long as they also modified other aspects of those plants and factories in such a way that emissions were reduced.
An environmentalist advocacy group challenged this new definition, which amounted to a loophole that allowed companies to get around otherwise sterner emissions rules, and that's how we got the Chevron court case.
What I'd like to talk about today is a recent, successful challenge to that Chevron ruling, and what it might mean for the powerful regulatory state that emerged in the US in the wake of that decision.
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On June 28, 2024, the Supreme Court announced their decision in a case that was originally argued in January of the same year—Loper Bright Enterprises v. Raimondo, along with a companion case on a connected matter, Relentless Inc v. Department of Commerce—the Court's decision being that the Chevron deference, which says agencies can define fuzziness left in law by Congress, conflicts with the Administrative Procedure Act, or APA, which itself says the US court system has oversight powers when it comes to all agency actions.
The long and short of this decision—which was made along what are generally considered to be ideological lines within the court, the more conservative 6 justices ruling against the Chevron doctrine, the 3 more liberal justices ruling to keeping it—is that federal agencies will now have far less wiggle-room and legally backed authority when it comes to the laws and policies they enforce.
And while the court also said this doesn't immediately strip prior judgements of their impact and consequences, it does mean—according to most experts who have responded to and analyzed to this ruling, at least—that we're likely to see a wave of lawsuits against agencies that have done things or refined regulations in a way that individuals or companies didn't like, which could amount to the same thing within the next couple of years: many such regulations being done away with, those agencies becoming husks of their former selves because their capabilities will be pruned back significantly.
This is being seen as a victory by mostly conservative activists and lawmakers who are keen to see the regulatory components of the US government shrunk, their powers and funding depleted as a much as possible, doing away with what they sometimes derisively call the "administrative state," which they consider to be a limit on the free market and in some cases their own powers within politics and the economy.
And among many other regulations, thousands of them, by some estimates, this could impact the government's ability to regulate environmental pollution, safety measures for cars and airplanes, workers' rights and health considerations, and even somewhat more wonky things like net neutrality and the legality or illegality of very specific aspects of the e-cigarette and crypto industries.
For decades, these regulations have been to greater and lesser degrees interpreted—in their specifics, at least—by regulatory bodies like the FDA, the FCC, the EPA, and other such agencies. Congress has mapped out the broad strokes, leaving the details for the relevant agencies to sort out, because they knew this ruling would give those agencies the power to do so.
So those laws passed in this way by a Congress that knew this was how things worked, legally, will suddenly find themselves incredibly challengeable, the legal basis of their specifics now based on flimsy justifications that the court no longer supports.
These policies won't immediately disappear, then, but all of them, in their details and as a whole, are now more vulnerable to lawsuits from anyone who wants to bring them, and those who bring them will likely win, because the court system has taken away the protections those agency powers formerly leaned-upon.
Consequently, there are fresh concerns from folks working in environmental spaces, those attempting to incentivize the deployment of renewable energy infrastructure, and those who are trying to protect workers' rights, that they could soon be tied up in endless court cases, many aspects of the legal understanding they've worked in accordance with other the past four decades pulled out from under them—their capacity to enforce anything not spelled out in detail by congress, which is very little because congress has gotten used to leaving that to them, in many cases, dramatically reduced.
There are parallel concerns that standards that have made the US market relatively trustworthy, compared to other global marketplaces, at least, in terms of the safety of foods and medicines and all sorts of other products, might be diminished, leading to a bunch of new safety challenges, but also a demotion of American goods on the global market, because fewer sturdy regulations, at least in the short-term, could lead to more rip-offs and fakes, lower-quality items subbed in for higher-quality ones, and a bunch of risky, and even dangerous new products and services hitting the market, because these agencies are suddenly less empowered to check them out before approving them.
One of the larger concerns, especially amongst folks on the political left in the US, is the impact this could have on health care.
The Affordable Care Act, which provides reduced-cost insurance plans to folks who make less than a set amount of income, is enabled by a huge jumble of regulations that determine how things are paid for, who can and must participate—citizens and hospitals and pharmaceutical companies and so on—and how everything fits together, ensuring Medicare, Medicaid, and the ACA can continue to function, despite relying upon often arcane methods and cost overruns.
The US Treasury and IRS, too, rely heavily on regulatory powers to draft new rules and enforce the tax code, which allows for the management of money throughout government agencies and other bodies, but which also helps the government develop and deploy sticks and carrots throughout its portfolio of laws, acts, and policy-based nudges.
The deployment of clean energy tax credits and incentives to help push solar and wind power development, and to encourage the construction of chip-making facilities on US soil, for instance, are all reliant on the ability to divvy out those credits, to decide how big they should be, and to determine who should get them, based on what criteria.
The general outline of most of these programs is still on solid ground, because Congress decides that sort of thing, even today, but so many specific details and numbers and implementation strategies are left to agencies, and though it's possible to shore those up, Congress stepping in to vote on and pass new details into law, it will take time to do that, and especially in highly competitive spaces like chip-making, and arguably time-sensitive spaces like those related to healthcare and climate change, a gap in implementation and legality could be incredibly meaningful, and even devastating to some of these projects and their outcomes.
In addition to having grown accustomed to being able to leave those sorts of details to agencies, which has impacted how they make law, the US Congress, too, has become highly polarized and at times somewhat stagnant, moving sluggishly on controversial areas, in particular, one side or the other bogging down even debate about things they don't like, rather than working with the other side to find a middle-ground they can agree upon.
So while many lawmakers may want to move fast to fill in some of these gaps that have suddenly appeared across US law and capability, that desire may be held up by the reality of US politics at the moment, and systems that are often weighed-down by the people who operate them, and the systems meant to keep them ticking along, but which sometimes do the opposite.
One way of looking at all this—through the lens of those who generally support this decision—is that this ruling could force Congress to get more specific in its laws, and in the meantime it could reduce the amount of bloat that can accumulate within any regulatory system; some of the sluggishness in getting new products to market, building-out new infrastructure, and passing new laws could actually be reduced, streamlining processes that currently, arguably, take too long, cost too much, and provide little benefit, all because these agencies have developed too many hoops to jump through and piles of paperwork to fill out.
Another way of looking at it, from the perspective of those who generally decry this outcome, is that this will lead to a huge shock, bordering on chaos, throughout the US legal and governmental system, will do away with all sorts of government supports, leaving us with fewer protections and filters that help keep people safe, and which keep businesses from abusing their positions of power, and that it puts more power in the hands of judges, who—especially at the very top, within the Supreme Court, which made this decision—are usually put into their positions by whomever happens to be in power, occupying the presidency, when one of their predecessors retires or dies. Which is why there's such a huge 6 to 3 imbalance between conservative and liberal justices in the Supreme Court at the moment, that imbalance unlikely to go away any time soon, because those unelected positions are for life; though Republicans during the Trump administration also made it a priority to fill lower rungs of the justice system with ideological fellow travelers, so the justice system in the US, broadly, is more conservative than it has historically been, at this particular moment.
There's a chance, then, that this ruling could lead to a period of reduced regulatory bloat, which could help some industries and governments cruise forward with things they've long wanted to do, but have been unable to make progress on because of all the bureaucracy standing between them and their intended goals. There's also a chance this could shake the foundations of some of the agencies that have been essentially captured by the industries they're meant to regulate, messing with those relationships in a way that's arguably better for citizens and institutions, and worse for the businesses that lobbied their way into informal regulatory power over themselves.
On the other hand, it could also be that progress on much of anything will be almost impossible until these laws can be revisited and made more specific at the Congressional level, because there will be so many court challenges to everything, from all sides, that the US justice system will have a full dance card for years just sorting out the basics, and everyone will be too afraid to proceed with anything in the meantime, lest they make investments that ultimately turn out to be illegal.
Notably, the Supreme Court decision in this case did say that Congress could still delegate decision-making powers to federal agencies: they just have to specifically say that's what they're doing, rather than leaving things fuzzy and assuming that will be implied. So we may also see a brief period of relative chaos, followed by basically more of the same, everything going back to how it is today because Congress makes sure to include a line of text in every law they pass that specifies that delegatory intent.
One more major consideration here is that the court system, and especially the Supreme Court up at the top of the pecking order, is only so big, and already often moves at a relatively sluggish pace.
That means it could have trouble addressing all the little issues Congress fails to address, regulatorily, and that it will likely take the court system a while to weed through all the cases that are expected to pop up in the wake of this decision.
And that means we could see a somewhat slowed-down implementation of this new, anticipated reality—whichever version we get—which could also mean Congress, and the other facets of the government that will have to change the way they operate, has more time to get their ducks in a row, maybe reducing the impact of the shock the legal system is expected to experience over the next few years as a result of this decision.
Show Notes
https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Raimondo
https://en.wikipedia.org/wiki/Administrative_Procedure_Act
https://apnews.com/article/supreme-court-chevron-regulations-environment-4ae73d5a79cabadff4da8f7e16669929
https://www.nytimes.com/2024/06/28/us/politics/chevron-deference-decision-meaning.html
https://www.washingtonpost.com/climate-environment/2024/06/28/supreme-court-chevron-environmental-rules/
https://thehill.com/homenews/ap/ap-health/ap-what-it-means-for-the-supreme-court-to-throw-out-chevron-decision-undercutting-federal-regulators/
https://www.axios.com/2024/06/28/supreme-court-chevron-doctrine-ruling
https://www.theverge.com/2024/6/28/24180118/supreme-court-chevron-deference-decision-opinion
https://www.theverge.com/24188365/chevron-scotus-net-neutrality-dmca-visa-fcc-ftc-epa
https://www.nytimes.com/2022/06/19/climate/supreme-court-climate-epa.html
https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
https://en.wikipedia.org/wiki/Marbury_v._Madison
https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.
Chevron Deference