Today is Opinion Day at the Supreme Court (and we have heard Monday is one, too) and we have three huge decisions. We will get to the Supreme Court’s decision on the alleged right of homeless people to sleep on the streets as well as the January 6 case in a minute, but easily the most impactful decision is Loper Bright Enterprises v. Raimondo, which simply put said that Chevron is overruled.
And if you are not a legal geek like this author, that might take some explaining, but trust us when we say that is huge.
We are not going to go especially deep in our analysis but Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), essentially held that when an agency put forth an interpretation of the law, the Courts had to defer to their interpretation. This meant as a practical matter that every time a new administration came in, they could radically change the law by changing its interpretation. The decision of the ATF to declare that a bump stock turned a semi-automatic rifle into a machine gun was just one prominent example of the chaos that this could introduce into people’s lives. Under that interpretation, suddenly a legal product became illegal product not because Congress passed a new law, but because the ATF decided to reinterpret the statute. That meant an agency could effectively criminalize conduct that would normally be legal and without the nicety of Congress passing a law. We wrote about the bump stock case here.
But now the Supreme Court has overturned Chevron. Courts will no longer defer. This is easily the biggest Supreme Court news this week, although this is part of a one-two blow delivered by yesterday’s decision that the SEC can’t impose civil penalties without a jury trial in a normal court.
And credit is due to our commenters for seeming to smell this coming. ‘MBHarley’ wrote the following in our post on the bump stock case:
This should lead to Chevron being overturned in the next week or so.
He was only off by seven days, but we will give him or her a mulligan. ‘ConquererOfAllFoesCheese’ added
I would probably pass out, at least briefly, if that happened.
So … has anyone checked on this person this morning?
Joking aside, did we mention that Twitchy has a sale on VIP memberships today? One of the benefits of VIP membership is that you can join those kind of law nerdy discussions, too.
In any case, this is a big deal:
...Roberts finally delivers the coup de grace on Chevron in a 6-2 decision.
— Jonathan Turley (@JonathanTurley) June 28, 2024
Turley seems to be making some typos. There were only two opinions when he wrote that. And the actual vote is kind of weirder than that, because technically there is more than one case being decided. Jackson participated in one but couldn’t participate in the other for some reason. So, one part is 6-2 and the other is 6-3.
...Notably, after Sotomayor said that she hoped to reverse the decision on homeless rights, the court just did that on Chevron. Roberts is saying that Chevron was a "misguided."
— Jonathan Turley (@JonathanTurley) June 28, 2024
It is actually somewhat remarkable for the Supreme Court to do this, because usually they are extremely reluctant to overturn a decision based on statutory interpretation. The Supreme Court’s usual attitude is ‘if we got it wrong, Congress can fix it by passing a new law.’ Obviously, they take a different attitude, typically, when it comes to the Constitution.
...Justice Kagan is vehement that this is an outrageous clawback on federal agency authority because Chevron "has become part of the warp and woof of modern government." That is certainly true but many disagree that it was a good change in a Madisonian system based on tripartite…
— Jonathan Turley (@JonathanTurley) June 28, 2024
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That is certainly true but many disagree that it was a good change in a Madisonian system based on tripartite government...
...It is important to note that this Republic did exist before Chevron. I have long been a critic of the case because I felt that it undermined the Madisonian system. Courts will now perform their constitutional and traditional function in review...
— Jonathan Turley (@JonathanTurley) June 28, 2024
Indeed, Chevron was decided in 1984. So somehow the Republic survived all the way until the birth of the Ghostbusters franchise without this decision.
(And if you recall, Ghostbusters is kind of a libertarian movie, about private contractors creating a company to deal with a public menace and with the EPA schmuck contributing significantly to their problems, rather than protecting people.)
...In SEC v. Jarkesy, the Court ruled that citizens charged with civil penalties have the right to a jury trial, under the Seventh Amendment. Now agencies will not be able to count on sweeping deference in their interpretations. Also keep in mind that the Court has embraced the…
— Jonathan Turley (@JonathanTurley) June 28, 2024
The cut off text:
Also keep in mind that the Court has embraced the ‘major questions’ doctrine to demand greater clarity in some of these cases...
BREAKING: In a major blow to the unelected administrative state, the Supreme Court has overruled the Chevron doctrine, which required courts to defer to the legal interpretations of unelected bureaucrats.
— Sean Davis (@seanmdav) June 28, 2024
“Chevron is overruled.” pic.twitter.com/tqC5EYaUBl
In these cases, the National Marine Fisheries Service claimed without statutory authorization the right to force fishing boats to pay government monitor salaries of up to 20% of their revenues.
— Carrie Severino (@JCNSeverino) June 28, 2024
This is a Court that cares about the separate but coequal branches of government doing what they are supposed to do.
— Carrie Severino (@JCNSeverino) June 28, 2024
Congress, for its part, needs to do more of its job, articulating what the rules are itself instead of abdicating in favor of unelected bureaucrats who are not…
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Congress, for its part, needs to do more of its job, articulating what the rules are itself instead of abdicating in favor of unelected bureaucrats who are not given that power under the Constitution.
The counter argument is that Congress couldn’t possibly make a sufficient number of laws to keep up with changing conditions. We don't say that to suggest we agree, but it is the classic justification for Chevron and other rules that allow agencies to significantly alter the law.
Oh, and since it is taking lawmaking power away from unelected bureaucrats and putting it in the hands of elected Congresscritters, this makes America a more democratic country. America is more democratic this morning than it was twenty-four hours ago. But we are willing to bet that Democrats will claim this is a threat to democracy!
(As we often say, whenever a Democrat says something is a 'threat to democracy,' just substitute the phrase 'threat to the Democrat agenda,' and it will make much more sense.)
The operative standard going forward will be the one the Court handed down in Skidmore 80 years ago.
— Carrie Severino (@JCNSeverino) June 28, 2024
Agency judgment deserves a level of consideration consistent with “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and…
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Agency judgment deserves a level of consideration consistent with ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’
The common talking point on the other side about agency expertise is untethered to reality, which is that agency officials often push their own agendas regardless of whether that would contort the underlying law.
— Carrie Severino (@JCNSeverino) June 28, 2024
The Court is not putting itself in the place of experts.
— Carrie Severino (@JCNSeverino) June 28, 2024
It is not claiming to be an expert on policy but sticking to its strength, interpreting the law, and making sure agencies remain within their bounds.
It is acting as a referee that is weighing competing interpretations…
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It is acting as a referee that is weighing competing interpretations of a federal statute.
The Court’s decision means that it will no longer put its heavy thumb on the scale of claims by agencies. Agency officials will now have to do their homework and win on the merits, not on favoritism.
This case is admittedly more ‘in the weeds’ than something like the January 6 case, and we will need to read Loper in full and ponder its implications. But we feel pretty confident in saying that this is one of the ten most significant cases in this author’s lifetime. (And for the record, this author was born in 1972.)
As of this morning, hundreds, thousands, maybe even millions of decisions by the Supreme Court and lower courts and actions by federal agencies have been called into doubt. And many of them will be overturned or overruled. The case is that significant.
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