Last month, the Supreme Court, in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, overturned Chevron deference, a doctrine that said to federal courts – defer to federal agencies’ interpretations of ambiguous or unclear laws passed by Congress.
In its ruling, the Supreme Court told lower courts that instead of deferring to the judgment of federal agencies, instead rely on their own interpretation of ambiguous laws.
This has caused much consternation in the liberal press, which portrayed the ruling as almost the end of the world when it came to regulatory agency power.
Or as the liberal website Common Dreams put it – “The Supreme Court’s Billionaire Buddies Just Made Your Life Worse – The assault by the six right-wing justices on the Chevron doctrine is an assault on everyday people, carried out on behalf of corporations and the Court’s wealthy benefactors.”
GWU Law Professor Alan Morrison says – not the end of the world.
“I have a saying – things are not as good or bad as they seem,” Morrison told Corporate Crime Reporter in an interview last month. “The Court itself has not cited Chevron in six or eight years in deciding a case. And it has routinely ruled against administrative agencies even in the face of Chevron. And lower courts have done much the same, often given a nod to Chevron, saying the interpretation is unreasonable. Reasonableness, like clarity, is often in the eye of the beholder.”
“Second, the Court has created another doctrine called the Major Questions Doctrine, under which the court has said – even if agencies are entitled to certain degrees of deference, there are certain questions that we will say, because of their major significance on the economy or for other reasons, Congress should not be assumed to have given the agency the power to make those kinds of rules absent some very clearly statement by Congress.”
“The Major Questions Doctrine chips away at agency deference, but from an opposite direction. It makes it harder even without Chevron for agencies to hold their positions.”
“And third, courts have had essentially no trouble, even in the face of Chevron, to disagree with agencies when they think the agency was wrong. Chevron deference gave them a little leg up, but not all that much.”
People on the left are portraying the Supreme Court’s decision overturning Chevron deference as a major defeat. So for example, Common Dreams ran an article titled – “The Supreme Court’s Billionaire Buddies Just Made Your Life Worse.”
“That’s their view, they are entitled to it,” Morrison said. “I think it’s vastly overstated, first for the reasons I said before. The good guys haven’t been winning in the courts for a long time anyway. Second, if we have another Trump administration, the Trump administration will not be able to invoke Chevron to support its completely unreasonable interpretations of many statutes. And the courts will be, or should be, freer to attack those decisions.”
“When I was at Public Citizen Litigation Group, Chevron was our friend sometimes and our enemy sometimes. When we were challenging what the agency did, we were wishing that Chevron deference hadn’t been there. People forget about that. It’s not just the big corporations or the wealthy that were challenging agency regulations. Environmental groups, Public Citizen, civil liberties groups – they are all going to challenge agency regulations. It all depends on who is sitting at the agency as to whether Chevron is a good thing or not.”
Could this Supreme Court decision have a boomerang benefit in that it might force Congress into being more clear in drafting legislation? “I wish that were the case. The court said that Congress will have to do this. I do not believe that this Congress is capable of doing this. I’m not sure that any Congress is capable of figuring out all of the possible ways in which the statute could be interpreted. The world is just too complicated. The world changes too much.”
“Just take something like artificial intelligence. If you wrote a statute that says – no, you can’t do this. And then AI comes in. Who could have predicted when these statutes were written ten, twenty or thirty years ago that AI is what it is today and what it may become?”
“The last thing I will say about Congress is, they can barely get their budgets done. They have been unable to pass the farm bill. These things they were usually able to pass without any trouble, but now they can’t do it. There is too much controversy. Nobody is serious about these things.”
“We used to have public markups of legislation. You would go to Capitol Hill and you could talk to people. The House and Senate would have different versions of the same bill. They would go to conference and the conference committee would sit down and do work. And when bills were passed and they realized that mistakes were made, there used to be technical correction bills – people understood the big battles were over and people came together to make corrections to make it work. That’s no longer here.”
“The notion that Congress is going to sit down and do a much better job than it’s doing now – that seems to me to be far fetched. Remember, as the famous philosopher Yogi Berra said – It is difficult to make predictions, especially about the future. And that’s what we are talking about here, especially when they are about the future.”
Conservatives are seen to favor executive power. And liberals are seen to favor Congressional and judicial power. But this decision favors judicial power.
“This decision certainly favors judicial power. The interesting thing about Chevron is that when the Trump administration was in power, for the first two years they had control over both the House and the Senate. There were many bills that were introduced to overturn Chevron. They did not move. Nobody wanted to take the responsibility. They realized that – well, this helps us sometimes, but it doesn’t help us other times.”
“As for power, conservatives are in favor of the president having power, as long as it’s the president they elected.”
Why then did you see all of the corporate think tanks line up in a frontal attack on Chevron deference?
“On balance, administrative agencies, particularly given the gridlock in Congress, are more likely to produce rules that big companies do not favor. In the Trump administration, they didn’t do much of anything except to keep people out of the country. They didn’t issue new rules, except to cut back on civil service authority. They imposed tariffs.”
What about corporate deregulation, that didn’t happen?
“Not very much.”
How do you explain that?
“Once a rule gets in place, corporations can live with it. They have paid the costs of the rule and they have written them off. They’ve increased their prices to consumers. They have done what they have to do for their workers. And they can live with it. It’s not the end of the world.”
“And then somebody comes along and says – we want to change that regulation. And the corporation says – no, don’t change that, just cut our taxes. Because that is what they did. And of course, cutting taxes has nothing to do with Chevron.”
The Washington Post ran an article titled – “Eight Policies That Could be Vulnerable to New Legal Challenges” – because of the Supreme Court ruling. And they go down the list – student loan forgiveness, worker rights, electric vehicle support and emissions limits. They are foreshadowing a real life attack on the administrative state.
“There is no question there is going to be an attack and they are saying there are going to be a whole bunch of new lawsuits as a result of the ruling. That’s silly. The new lawsuits are coming fast and furious in any event. And state attorneys general, various right wing groups and corporations are bringing lawsuits every place they can find them. This ruling will not encourage lawsuits. It may make it somewhat easier in some cases to win. But the companies are already going to all of these favorable forums they are going to. These judges are issuing rulings that are very bad for administrative agencies. And they will continue to do that. If they can bring them in the Fifth Circuit, the Fifth Circuit will continue to do it.”
“So yes, there will be some losses. But my own view is that most of those losses would occur anyway.”
Chevron deference had become beside the point?
“Maybe not quite beside the point, but of much diminished importance. Even when they cited Chevron, they would say – this is unreasonable. And the Supreme Court has not been great in bailing out these kinds of determinations. But it did make a couple of rulings this year on standing against challengers to administrative agencies, unlike what they did in the student loan cases.”
“The Post is surely right that there will be more cases.”
Have you followed the Biden judicial appointments at all and whether his appointments have effectively countered the Trump appointments?
“Numerically, they surely have. And parenthetically, my daughter Nina is now a federal judge in the Eastern District of New York, so obviously some of his appointments are superb.”
“The problem has been that Biden can only make appointments where there are vacancies. Most judges seem to be timing his or her retirement based upon whether they like the President who will appoint their successor. So, there have not been very many judicial appointments in places like the Fifth Circuit where the bulk of these cases are being brought. Places like Texas and Louisiana are hotbeds of anti-administration lawsuits.”
“I have made a proposal that would require a three judge court before any national rule or statute could be enjoined. That would slow down the rate of challenges. Biden’s appointment to the Supreme Court replaced one non-conservative with another non-conservative. There was no shift in the Court. Both Thomas and Alito are in their mid 70s and neither of them have shown any sign of being interested in retiring while Biden or any Democrat is in office. It’s going to be very difficult to make those changes at the top.”
If you were to map out the entire judiciary, is it a fifty/fifty judiciary?
“Different circuits are different. The Fifth Circuit is very conservative. The Ninth Circuit is generally quite liberal. The Fourth Circuit has become pretty liberal. You have to look at them more carefully and they are not the same on all of the issues. The Senators have considerable sway over who gets appointed to these positions. Different Senators from different states have different views.”
Back in the 1970s, there was the famous Powell memo which laid out the blueprint for corporations to counterattack the work you and Public Citizen and all of civic society was engaged in. It proposed litigation, the creation of an infrastructure of conservative think tanks, litigation groups – everything we are seeing come to fruition today. Justice Lewis Powell’s memo came to life.
“After his Supreme Court confirmation, I might add.”
Is there a need for a counter Powell memo to push back?
“It took a lot of money and organization to get that infrastructure in place. I don’t see the money coming from the other side to do anything like that. And it took a lot of time. Powell’s memo was in 1971. And now we are fifty years later. It would take a long time and a lot of money and effort to counter that.”
Are there seeds of resistance being planted?
“The New York Times had a piece a couple of weeks ago about several groups that are organizing – including the ACLU and others – to counter what the expected thrust of a new Trump administration will be. That’s an important effort. And I will offer my services to help out in that, if it should come to pass.”
“But a sea change of the kind that resulted from the Powell memo – that’s going to take a long time and I don’t see anybody pushing that at this time.”
[For the complete q/a format Interview with Alan Morrison, see 38 Corporate Crime Reporter 31(13), July 22, 2024, print edition only.]