If people are still struggling to describe the scope of the damage done by the U.S. Supreme Court a week after it jettisoned the Chevron doctrine, it’s not for lack of adjectives.
It’s that the harm is so great.
Congress passes laws; agencies carry them out. Forty years ago, a much different Supreme Court ruled that when the law was vague or silent on an issue, the courts should defer to experts in agencies who were in the best position to interpret and draft regulations. (The case was Chevron USA vs. National Resources Defense Council).
Since then, Chevron has influenced how factories retool and smokestack emissions are capped. It is cited in regulations protecting the right to unionize, how domestic abuse victims can find family housing, where nuclear waste is dumped, how fast your internet service provider runs and who can see records of your reproductive medical care.
The safety of the drugs you take, the air you breathe, whether your student loan debt will be forgiven? They all turn on Chevron.
It governed how we live
The doctrine operated quietly in the background for decades, fashioning not only how courts resolve disputes over complex laws, but how Americans live.
That’s what Supreme Court justices unceremoniously ditched, and they did it with breathtaking hubris.
“Agencies have no special competence in resolving statutory ambiguities,” Chief Justice John Roberts wrote. “Courts do.”
In fact, there’s a long, sad history of federal judges embracing inexpert opinion.
Roberts justified ruling against part of the Voting Rights Act using bad voter registration data, ProPublica found. Justice Anthony Kennedy erroneously claimed DNA analysis is 100 percent accurate. It isn’t. Justice Samuel Alito believes carbon dioxide is not a pollutant, in part because people safely exhale it.
A buffer against politics
There’s another reason to mourn Chevron’s passing.
It buffered regulations from judges who substitute personal politics for science. U.S. District Judge Matthew Kacsmaryk is a case in point. In an opinion replete with outrage over “unborn humans” and references to error-laden studies, the Texas judge tossed aside decades of clinical evidence to rule that the Food and Drug Administration had improperly approved the abortion drug Mifepristone.
If there are no sound scientific reasons to push aside experts, there are plenty of political ones.
The Chevron case nominally arrived at the U.S. Supreme Court’s doorstep because fishermen objected to paying government fees.
But the push to overturn Chevron was never only about a fisherman’s small-business burden. More often, it has been about moneyed interests inconvenienced by a barrier of expertise-driven rules.
The hidden hand of Koch
No surprise, then, that the plaintiff-fishermen’s appeal was accompanied by friends in high places, most notably billionaire Charles Koch, whose anti-regulatory zeal is well-known.
Board members of the nonprofit paying the fishermen’s lawyers were tied to Koch, the New York Times has reported. Those lawyers also worked for the Koch-funded Americans for Prosperity.
The Koch connection is especially troubling. In 2005, Justice Clarence Thomas penned a majority opinion forcefully upholding Chevron. Fifteen years later, he just as forcefully wrote that his opinion was wrong. That was about two years after Thomas was a featured speaker at a Koch donor event in Palm Springs.
Thomas did not disclose the gifted travel. ProPublica did, along with Thomas’s long-term personal relationship with Charles and David Koch.
Then there’s the growing right-wing talking point that deferring decisions to experts is anti-democratic. Alito is among those bemoaning the “massive shift” of power from Congress to unelected agency experts.
Elected congressional representatives writing the laws should make the rules, the argument goes, because they answer to voters.
Of course, Sen. Ted Cruz and Rep. Marjorie Taylor Greene would rather run blindfolded with scissors than spend Saturdays translating the relative value of medical services into a fixed Medicare fee schedule.
Making judges more powerful
The court fixed that too. By killing Chevron, it shifted the power away from agency experts — but not to Congress. They gave it to judges.
Specifically, they gave that power to federal judges, who are appointed for life and answerable to no voter, ever.
Now, Cruz and Company don’t have to figure out how much mercury in an Everglades big-mouth bass is too much mercury for a pregnant woman’s fried fish dinner.
But U.S. District Judge Aileen Cannon in Fort Pierce, a Trump-nominated judge of questionable competence, can.
The Sun Sentinel Editorial Board consists of Opinion Editor Steve Bousquet, Deputy Opinion Editor Dan Sweeney, editorial writers Pat Beall and Martin Dyckman and Editor-in-Chief Julie Anderson. Our editorials are the opinion of the Board and written by one of its members. Contact us by email at letters@sun-sentinel.com.
