"Power grab": Supreme Court guts agency power, posing "devastating" environmental risks

The Supreme Court voted along party lines in a historic decision on Friday, ruling against the government in a pair of cases — Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. The conservative judges sided against the liberals, setting a precedent gutting the power of regulatory agencies to protect the environment and consumers.

According to one expert, the 6-3 decision proves that something "sinister is afoot."

"Something very sinister is afoot here," United for Democracy's senior adviser Meagan Hatcher-Mays said. United for Democracy is an activist organization that specifically focuses on studying Supreme Court cases. "Look, this is a gift to the Koch network. This is a gift to Harlan Crow and Leonard Leo and all of these people who are paying for the justices to go on private jets and to sail on yachts to Bali. These same people who are paying Clarence Thomas's relatives' school tuition, these are the same people who want Chevron deference to be overturned. This decision today is a gift to those benefactors."

Hatcher-Mays added that the "open question" is "whether or not the gifts induced the decision."

Gautham Rao, a professor of legal history at American University, told Salon that the case has "historic implications" as an attack "on what we call the administrative state." That is, the federal agencies staffed by scientists, lawyers and other trained experts to implement complex national policy.

"Things like scientific matters pertaining to clean air and clean water, as one example, or complicated matters pertaining to labor relations between employer and employee," Rao said, adding that in the 20th Century judges have traditionally interpreted the Administrative Procedures Act as granting federal agencies authority here because they are staffed with experts. That interpretation was rendered official in 1984 with the so-called Chevron decision (Chevron U.S.A. v. Natural Resources Defense Council), in which the Supreme Court decided that lower courts should defer to expert federal agencies on how to interpret the law, provided their reading was reasonable. By establishing so-called "Chevron deference," the court made it possible for Congress to rely on federal expertise when implementing a wide range of policy measures.

By overturning Chevron deference, the Supreme Court has therefore made it possible for conservative judges in lower courts to reverse expert policies with which they disagree for ideological reasons.

"Let's just say, for example, a court majority doesn't believe in climate change, they can essentially take down all manner of regulation on environmental matters, as an example," Rao said. He also noted that the court, rather than relying on historical precedent to reach its decision in these cases, instead created a false counter-narrative — something that he believes is also a troubling precedent.

"The Supreme Court's now very specious reliance on its version of history, and rendering the founders of the United States into versions of what they want but in reality not what the founders actually were," Rao said. "This is now a continuation with the Dobbs decision and others, where the court has looked to history and essentially created its own history that it finds very convenient to use as justification for undoing major governmental policies and traditions over the 20th Century."

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There were experts who disagreed with Rao and Hatcher-Mays. One of them is Charles Schexnaildre, who is of counsel at the law firm Baker, Donelson, Bearman, Caldwell & Berkowitz, PC.

"The decision issued by the Court today is a good one," Schexnaildre said. "It properly places statutory interpretive authority back under the judicial branch instead of pushing the courts to yield to the executive branches’ own interpretation of the law. The [Administrative Procedures Act] is clear that this interpretive authority belongs within the judicial branch of government, and this decision affirms that."

Schexnaildre also pointed out that the new decision will not alter existing policies established due to the Chevron deference precedent.

"The Supreme Court does make clear in this decision that it will not be applied retroactively, meaning prior judicial decisions which relied upon Chevron deference to find a specific agency action to be lawful shall still be afforded stare decisis by the court," Schexnaildre said.  "This of course does not mean that new challenges won’t be brought in relation to regulatory issues raised in the past under the APA upon which Court’s applied Chevron deference, but it does significantly limit the judicial branches ability to reconsider prior decisions."

In contrast to Schexnaildre's comparatively more reassuring interpretation, Rao characterized the new decision as part of a larger "power grab."

"We tend to think of government in terms of the high school version of 'separation of powers,'" Rao said. "I think what we are seeing here with this Supreme Court majority in particular is a real power grab to try to reconstitute the order of the three branches of government that are supposed to be co-equal. Now the court is asserting itself as being the paramount power of these three. The court has now a trend of intervening in areas where it just wants to intervene."

Devon Ombres, the senior director for Courts and Legal Policy at the Center for American Progress, also described the new decision as a "power grab."

"This is a power grab by the court for the rightwing powerbrokers and corporate interests to which they are beholden," Ombres said. "Public agencies are going to be kneecapped in how they act to protect people from abuses imposed by the powerful in every aspect of their lives."

When asked if the case sets any new precedents, Ombres said that "the only precedent this case sets is a continuation of the rightwing justices’ willingness to overturn stare decisis when it fits their agenda. And it makes judges, most likely those in the Northern District of Texas, the chief arbiters of administrative law rather than experts at public agencies that Congress wants making decisions that impact millions of Americans."

Ombres is not alone in warning that overturning Chevron deference will have an effect on millions of people. According to Hatcher-Mays, everyone who is concerned about politics will eventually be impacted by the overturning of the Chevron precedent.

"This is one of those sneaky Supreme Court cases that a lot of people might not have noticed, but it's going to have a devastating impact on the environment, on workers' rights, you name it," Hatcher-Mays said. "Whatever motivates people to pay attention to politics is under attack because of this ruling."