Creating Judicial Chaos: Will The Supreme Court Overturn The Chevron Decision? – OpEd

Republicans have proudly made themselves the party of chaos. In his tenure as president, Donald Trump was almost gleeful when he took executive actions that made no sense and often contradicted his earlier actions and stated positions.

Republicans have also applied this approach to the legislative branch as they have used their control of the House to block almost all legislation on anything, including efforts to deal with immigration. This is despite the fact that they endlessly yell about immigration as the number one crisis facing the country.

Now the chaos party is looking to take their brand to the judiciary, as Republican justices are debating whether to overturn the Chevron doctrine. The Chevron doctrine dates back to a case brought before the court in 1984.

In that case, Chevron was contesting the Environmental Protection Agency’s (EPA) interpretation of a law passed by Congress in 1977, which required an extensive environmental review for any industrial project that would establish a new stationary source of pollution. The EPA interpreted this law to mean that a significant expansion of any existing source also was subject to an EPA review.

Chevron contested this interpretation, arguing that it was not the precise wording of the law. The court decided in a unanimous decision (i.e. justices appointed by both Republicans and Democrats) that the EPA had acted correctly. The ruling, which became known as the Chevron doctrine, held that a decision by an administrative body, like the EPA, was binding as long as it was a reasonable interpretation of the statute passed by Congress.

The Supreme Court is now hearing a case, Loper Bright Enterprises v. Raimondo, which right-wing legal groups hope will overturn the Chevron case. The issue being contested is whether the National Marine Fisheries Service, a division of the Commerce Department, can require fishing boats to pay the cost of observers placed on their boats to ensure that they are complying with the relevant fishing restrictions.

Loper Bright Enterprises is arguing that this is not a provision written directly into the law. The counterargument from the Commerce Department (Gina Raimondo is the department secretary) is that this requirement is a reasonable interpretation of the laws requiring the Fisheries Service to maintain a sustainable supply of fish over time.

Overturning Chevron is Pro-Chaos, not Pro Business

Much of the discussion around this case treats the prospect of overturning Chevron as being pro-business. While that could be the outcome in this particular case (although the fishing industry is the biggest beneficiary of efforts to ensure a sustainable supply of fish), that would not necessarily be the effect in general.

Laws always contain a substantial element of ambiguity, since it is impossible to lay out in legislation the specific factors that would be relevant in every individual case. This means that it is necessary for someone to determine how the law applies to the specific case in question.

The Chevron doctrine gives considerable authority to the administrative agencies. These agencies are staffed with career civil servants who become experts in specific areas and apply the same principles over many decades. This ensures a large degree of consistency in the law, which businesses can assume in making expansion and investment decisions.

Overturning Chevron does not remove the need to interpret laws, it just takes the power away from the administrative agencies and gives it to judges. This is likely to lead to far less certainty for two reasons.

First, unlike the administrative agencies, the judges making rulings are not going to have expertise in the areas on which they are being asked to make a ruling. The trial court judge making the initial ruling in this case likely knew nothing about sustainable fishing practices.

The same would be the case with countless other issues that routinely get brought before administrative agencies. A judge making a ruling on whether Boeing had complied with relevant safety legislation with its latest 737 plane, likely has no expertise in airline safety, unlike the FAA. A judge making a ruling on the safety of a new drug likely has no expertise on the sort of tests needed to determine a drug’s safety and efficacy, unlike the FDA.

The issue of drug safety brings up the second reason. Sometimes presidents appoint judges, not because they think they would be competent jurists, but because they adhere to a particular ideology.

We saw this recently when U.S. District Judge Matthew Kacsmaryk overturned the FDA’s approval of mifepristone, a drug used to induce abortions, which had been on the market for more than 20 years. Judge Kacsmaryk does not have any special medical expertise, he was a far-right legal scholar appointed by Donald Trump to appease the anti-abortion movement.

It’s likely that Judge Kacsmaryk’s ruling will be overturned by the Supreme Court, it already has been stayed, so his prohibition on mifepristone’s use did not go into effect. But can anyone seriously contend that a world in which any judge can ban any drug that they don’t like, based on no scientific evidence whatsoever, is pro-business?

The pharmaceutical industry exaggerates the cost of developing drugs, but the major drug companies do spend tens of billions of dollars on research each year. Would this spending make sense in a context where any random judge can suddenly prohibit them from selling a drug that has long been established to be safe and effective?

The same story applies to almost every area of business. If the FAA had fully blessed Boeing’s airplane designs and safety tests, would it be good for Boeing if a judge could just ignore all the safety data and tell Boeing its planes are unsafe?

This also goes the other way. Car manufacturers spend hundreds of millions of dollars to comply with safety, pollution, and mileage standards. These companies would have a hard time competing with a new company who found a judge that said these rules don’t apply to them.

Needless to say, businesses don’t like rules that restrain them, but overturning Chevron doesn’t mean that they won’t have rules that restrain them. It just means that they won’t have the consistent enforcement that results from having career civil servants in administrative agencies attempting to apply laws in a uniform manner over time. Instead, they will be subject to random rulings from judges who span the political spectrum.

In short, the overturning of Chevron would be an effort by the Republican Justices to apply the same sort of chaos to the judiciary that the Republican Party has already applied to the executive and legislative branches. This would certainly enhance the Republicans’ ability to run as the party of chaos in 2024, but it would not do much to advance either business interests narrowly or the public interest more generally.

This first appeared on Dean Baker’s Beat the Press blog.