In 1906 Chicago, Upton Sinclair wrote about how meatpackers would put out poisoned bread for rats, and then the rats, poison and meat would be packaged into sausage and sold to unsuspecting customers in the days before reliable government food inspection.
Before safety rules were imposed, workers were injured or killed at their places of employment with alarming frequency.
In 2024, the entire world is confronted the possibility of the Earth overheating to the point of cataclysm, and new laws will be needed to protect the globe as new risks are identified.
Over the years, the government has made progress in protecting Americans. Congress has written legislation to protect food safety, the savings of individuals, the environment, the quality of drugs and consumer products and a host of other issues that affect ordinary Americans.
But with its 6-3 ruling Friday on a case named Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court’s conservative super-majority demonstrated it cares little about whether regulations will protect people in the future. Loper overturns the earlier Chevron v. Natural Resources Defense Council case, decided four decades ago in 1984.
‘No special competence?’ Really?
The idea behind what’s been called the Chevron doctrine was that Congress can’t possibly foresee every spec of technical minutia that might crop up in enforcing. say, clean water rules. Experts at the agencies in charge of implementing those rules could decide what Congress’ intentions were, as long as those experts did so in a reasonable fashion. If experts at a particular agency interpreted an ambiguous a law in a reasonable away, judges were supposed to defer to the agency.
Now, under Loper, instead of having experts with all kinds of technical, legal or scientific expertise reasonably interpret the fine points of congressional statutes, that job will go to judges who, in drug-safety regulation cases, for example, don’t know idarucizumab from ustekinumab.
How many judges understand all the ways oil and gas drilling might affect oceans and sea life? Or how to protect capital markets from opaque schemes of financial pirates? Or what levels are too high for certain chemicals in air, water or food?
As Justice Elena Kagan said in oral arguments, can you imagine leaving it up to judges to decide what’s the best way to regulate the fast-developing field of artificial intelligence? Many of those judges’ whole background is in criminal or corporate law. Without leaving part of the job to experts, can Congress write detailed laws fast enough to keep up with such an industry?
In a withering dissent, Kagan said the court’s majority is turning itself into “the country’s administrative czar.”
Remarkably, Chief Justice John G. Roberts Jr. wrote in the Loper Bright majority opinion, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
The courts have special competence? Was he thinking of how an environmental opinion written by Justice Neil Gorsuch that was released on Thursday confused, according to Forbes magazine, nitrogen oxide — the air pollutant at the heart of that case — with nitrous oxide, which is also known as “laughing gas”? Would a scientist or a medical expert make that mistake? The error was later corrected.
Now, deep-pocketed opponents of all kinds of regulations designed to help ordinary people will be able to tie up proposed rule-making in court for years.
“It is an enormously important ruling,” Howard Learner, CEO and executive director of the Environmental Law and Policy Center, told us. “It means the agencies will be in an endless litigation quagmire.”
As Congress has been divided in recent years, the executive branch has used federal regulations to fill in the gap.
Justice Brett Kavanaugh complained that such an approach “ushers in shocks to the system every four or eight years when a new administration comes in.” But doesn’t the overturning of longstanding and important precedents by unelected justices also usher in shocks to the system? The high court’s misguided Loper ruling sweeps away 40 years of precedent. And don’t even get us started on the 2022 overturning of half-century-old Roe v. Wade, which some justices said was “settled as a precedent” or “an important precedent” — until it wasn’t.
With the Loper decision, the court usurps authority from the legislative and executive branches in a big way, unbalancing the separation of powers that the Founding Fathers envisioned.
Super-wealthy individuals and special interest groups who pushed for a court that would do this sort of thing may believe this ruling may make them even richer. The rest of us have cause to fear for our safety in myriad ways.
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