If Ending Roe Isn't Enough, SCOTUS May Blow Up the Regulatory State

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tags: Supreme Court, regulation, Administrative State, Chevron Deference, Regulatory State

A great deal of Washington’s power rests on a fact you don’t learn in civics textbooks: When Congress passes new laws, those laws are filled with instructions that can be vague, or debatable, or even self-contradictory. Laws need to be reapplied to new circumstances over time.

Who gets to do that? For decades, courts have generally allowed federal agencies to make those calls — a policy made explicit in the 1984 Chevron v. National Resources Defense Council decision. That case also involved the Clean Air Act, with the ambiguous phrase at issue being “stationary sources” of air pollution. The Democratic administration of Jimmy Carter had interpreted that expansively; when Ronald Reagan’s administration later redefined the term more narrowly, environmental advocates asked the courts to not let them.

Under the reasoning laid out in the Chevron decision, courts should generally defer to federal agencies — in that instance, Reagan’s Environmental Protection Agency — when determining if a regulation is warranted under that agency’s statutory authority. Unless the answer is clearly no, courts should assume that the agency knows its business better than what conservatives used to call “unelected activist judges.” Since then, this principle has become known as the Chevron standard, or “Chevron deference.”

Increasingly, however, SCOTUS and lower courts have been taking a different view — as Trump-appointed judge Kathryn Kimball Mizelle did when she overturned the Centers for Disease Control and Prevention’s travel mask mandate last month. They, and a chorus of conservative advocates, say that judges should decide, not defer. So Mizelle, for example, decided that mask mandates do not “prevent the introduction, transmission, or spread of communicable diseases,” as the surgeon general is authorized to do under the 1944 Public Health Service Act.

Commentators on both left and right have, at various times, found fault with the Chevron standard — often depending on whether it’s a Democratic or Republican administration putting out the regulations. (Or, whether federal courts are filled with Democratic- or Republican-appointed judges.) The original Chevron case had liberals demanding judicial precedence over Reagan’s agencies. Conservative Justice Antonin Scalia was a prominent advocate of Chevron deference.

But in recent years, conservatives have made the demise of Chevron deference a priority, as a way of limiting what they see as the runaway growth of the regulatory state.

Justices Neil Gorsuch, Clarence Thomas, Brett Kavanaugh and Samuel Alito have all expressed opposition to Chevron in various ways, and many court observers believe that the conservative majority will soon overturn, or at least redefine, that precedent.

Medicare reimbursements and a particular EPA rule are just the tip of a mountainous quantity of federal regulations, old and new, that could be challenged if, as many expect, the Court uses those cases to announce the death of Chevron deference.

Read entire article at Politico