Neil Gorsuch is preparing his revenge
If they pull it off, they could destroy the ability of:
— the EPA to regulate pollutants,
— the USDA to keep our food supply safe,
— the FDA to oversee drugs going onto the market,
— OSHA to protect workers,
— the CPSC to keep dangerous toys and consumer products off the market,
— the FTC to regulate monopolies,
— the DOT to come up with highway and automobile safety standards,
— the ATF to regulate guns,
— the Interior Department to regulate drilling and mining on federal lands,
— the Forest Service to protect our woodlands and rivers,
— and the Department of Labor to protect workers’ rights.
Among other things on the rightwing billionaire wish-list: virtually the entirety of America’s ability to protect its citizens from corporate predation rests on what’s called the Chevron deference (more on that in a moment), which the Court appears prepared to overturn with a case they just accepted last week.
Declared Republican presidential candidate Vivek Ramaswamy says he wants to eliminate the Department of Education “on day one” if he’s elected president. If the Supreme Court has its way, he wouldn’t have to bother. It’ll become impotent.
Far-right conservatives and libertarians have been working for this destruction of agencies — the ultimate in deregulation — ever since the first regulatory agencies came into being with the 1906 creation of the Pure Food and Drugs Act, a response to Upton Sinclair’s bestselling horror story published that year (The Jungle) about American slaughterhouses and meat-packing operations.
Gutting these agencies is what Steve Bannon meant when Trump brought him into the White House and he said one of the main goals of that administration was to “deconstruct the administrative state.” If there’s any coherent explanation of the phrase “deep state” as used by Republicans, it’s our nation’s regulatory agencies.
The modern effort to destroy or at least neuter America’s protective agencies began when Ronald Reagan put Anne Gorsuch in charge of the Environmental Protection Agency (EPA).
She directed the agency to dial back restrictions on expansion of factories and other operations that were already polluting the atmosphere. That provoked a challenge to the Supreme Court, Natural Resources Defense Council, v. Gorsuch, where the Court overruled the Reagan administration.
Gorsuch nonetheless continued her efforts to gut the EPA. In her first year heading the agency, there was a 79 percent decline in enforcement cases, and a 69 percent drop in cases the EPA referred to the Justice Department for prosecution. She pushed a 25 percent cut in her own agency’s funding into Reagan’s first budget proposal.
It took Congress years to overturn her cuts to the Clean Air Act “on everything from automobiles to furniture manufacturers,” according to Phil Clapp, president of the National Environmental Trust.
She took a meataxe to President Carter’s renewable energy programs and “set solar back a decade” according to Clapp.
Gorsuch finally resigned her office to avoid prosecution for what Newsweek described as “a nasty scandal involving political manipulation, [Super]fund mismanagement, perjury, and destruction of subpoenaed documents, among other things.”
Her son, Neil Gorsuch, was devastated by his mother’s resignation. In her memoir Are You Tough Enough? she tells the story of how Neil confronted her when she resigned:
“Neil,” she wrote, “got very upset. Halfway through Georgetown prep and smart as a whip, Neil knew from the beginning the seriousness of my problems. He also had an unerring sense of fairness, as do so many people his age.
“‘You should never have resigned,’ he said firmly. ‘You didn’t do anything wrong. You only did what the president [Reagan] ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?’
“He was really upset,” she added.
Now, it appears, her son is preparing his revenge.
To get there, he and at least three other Republicans on the Court (the number required to accept a case) appear hell-bent-for-leather to turn regulatory agency rule-making upside-down.
Here’s how regulatory law — using the example of the EPA and CO2 — is supposed to work (in super-simplified form):
1. Congress passes a law that says, for example, that the Environmental Protection Agency should limit the damage that pollutants in the environment cause to the planet. Congress (the Constitution’s Article I branch of government) defines the broad goal of the legislation, but the Executive Branch (Article II, which encompasses the EPA and other regulatory agencies) has the responsibility to carry it out.
2. The EPA, part of that Executive Branch and answering both to the law and the President, then convenes panels of experts. They spend a year or more doing an exhaustive, deep dive into the science, coming up with dozens or even hundreds of suggestions to limit atmospheric CO2, ranging from rules on how much emission cars can expel to drilling and refining processes that may leak CO2 or methane (which degrades into CO2), etc.
3. The experts’ suggestions are then run past a panel of rule-making bureaucrats and hired-gun rule-making experts for the EPA to decide what the standards should be. They take into consideration the current abilities of industry and the costs versus the benefits of various rules, among other things.
4. After they’ve come up with those tentative regulations, they submit them for public review and hearings. When that process is done and a consensus is achieved, they make them into official EPA rules, publish them, enforce them, and the CO2 emissions begin to drop.
This is how it worked until last year, a process that simply comports with common sense, as the Supreme Court ruled in 1984 when they established what’s called the “Chevron deference” to legitimize and defend our regulatory agencies.
That doctrine — established by the Supreme Court and reflecting a century of the will of Congress and presidents of both parties who signed regulatory agencies into existence — says that when a regulatory agency does its due diligence and determines reasonable rules for a substance or behavior they have the legal authority to regulate, the courts should defer to the agency.
Congress passes laws that empower regulatory agencies to solve problems, the agencies figure out how to do that and put the rules into place, and the solutions get enforced by the agencies. And when somebody sues to overturn the rules, if the courts determine they were arrived at through a reasonable process without corruption, those rules stand.
Then came a group of rightwing Supreme Court justices — including Neil Gorsuch — who overturned rules made by the EPA about CO2 emissions from power plants in their June, 2022 West Virginia v EPA decision.
Their rationale was that because the legislation that created the EPA doesn’t specifically mention “regulating CO2,” the agency lacks that power. And now it has lost that power, the result of that West Virginia v EPA decision last year.
The coal-, oil-, and natural-gas-fired power plant industry has been popping champagne corks for almost a year now, as CO2 levels continue to increase along with the temperature of our planet.
In addition to Gorsuch, the Court’s decision-makers in West Virginia v EPA included Amy Coney Barrett whose father was a lawyer for Shell Oil for decades, and John Roberts, Samuel Alito, and Brett Kavanaugh who are all on the Court in part because of support from a network funded by fossil fuel billionaires and their industry (among others).
And, of course, Clarence “on the take” Thomas, who supported the Chevron deference 15 years ago but in 2020 wrote:
“Chevron compels judges to abdicate the judicial power without constitutional sanction. … Chevron also gives federal agencies unconstitutional power.”
Giving us a clue to how this will probably go down, all six Republicans on the Court voted to gut the EPA’s ability to regulate CO2; all 3 Democratic nominees opposed the decision.
Elena Kagan wrote that the Court:
“[D]oes not have a clue about how to address climate change...yet it appoints itself, instead of congress or the expert agency...the decision-maker on climate policy. I cannot think of many things more frightening."
Their ruling was, essentially, that all of that research into the specifics of anticipated regulations — all those hundreds of scientists, millions of public comments, and hundreds of thousands of science-hours invested in understanding problems and coming up with workable solutions — must be done by Congress rather than administrative regulatory agencies.
As if Congress had the time and staff. As if Congress was stocked with scientific experts, a much larger budget, and had millions of hours a year for hearings. As if Republicans in the pockets of fossil fuel billionaires wouldn’t block any congressional action even if it did.
Gorsuch, et al, succeeded in the West Virginia v EPA case, but it was narrowly focused on CO2.
In the upcoming case that they accepted just this month, however, the Court is explicitly preparing to expand that victory by blowing the entire Chevron deference out of the water, thus ending or severely limiting most protective government regulations in America and opening the door to court challenges to every regulatory agency listed at the open of this article (and more).
They’re saying, essentially, that the EPA (and any other regulatory agency) can’t do all the steps listed above: instead, that detailed and time-consuming analysis of a problem, developing specific solutions, and writing specific rules has to be done, they say, by Congress itself.
Specifically, this case the Court just accepted has to do with whether or not fishermen should have to pay fees that help cover the cost of the agency that regulates them. It’s called Loper Bright Enterprises v Gina Raimondo.
But when you look at the briefs being filed by billionaire- and corporate-funded rightwing groups like the CATO Institute, Competitive Enterprise Institute, Pacific Legal Foundation, Independent Women’s Law Center, Southeastern Legal Foundation, Christian Employer’s Alliance, National Right to Work Legal Defense Foundation, Advancing American Freedom, and the Buckeye Institute, you find the real goal of this litigation.
CATO, for example, writes:
“[I]t is now clear that Chevron deference is unconstitutional and ahistorical. Over the past forty years and counting, it has wreaked havoc in the lower courts upon people and businesses.”
Competitive Enterprise writes of the National Marine Fisheries Service:
“The agency lacks inherent legislative power: it may only use the powers that Congress gives it. … Only Congress can decide if a power given to it by the Constitution should be exercised. … The agency’s attempt to exercise this never-assigned power not only goes beyond the authority Congress gave it; it goes beyond any authority that Congress could legitimately give it.”
Pacific Legal Foundation cuts right to the heart of the ability of agencies to regulate anything, saying the case turns on:
“Whether the Court should overrule Chevron…”
The Buckeye Institute writes they’re submitting their amicus brief to the Court:
“[T]o speak on behalf of the thousands of small businesses concerned with agency aggrandizement of power through Chevron deference…”
On the side of you, me, and most other average Americans who just want clean air and water, safe drugs and cars, and reasonable protections in the workplace, the Biden administration has stepped up.
In defense of America’s regulatory agencies, the federal government’s brief filed with the Court lays out what’s at stake:
“Petitioners bear an especially heavy burden in asking this Court to overrule Chevron, which stands at the head of ‘a long line of precedents’ reaching back decades. The Court in Chevron described its approach not as an innovation, but as the application of “well-settled principles” concerning the respective roles of agencies and courts in resolving statutory ambiguities.
“Federal courts have invoked Chevron in thousands of reported decisions, and Congress has repeatedly legislated against its backdrop. Regulated entities and others routinely rely on agency interpretations that courts have upheld under the Chevron framework.
“By centralizing interpretive decisions in agencies supervised by the President, Chevron also promotes political accountability, national uniformity and predictability, and it respects the expertise agencies can bring to bear in ad- ministering complex statutory schemes.
“Petitioners offer no persuasive ‘special justification’ for overruling Chevron, let alone the type of ‘particularly special justification’ that would be required to overturn such a deeply ingrained part of administrative law.
“Petitioners principally contend that Chevron improperly transfers the authority to ‘say what the law is’ from the Judicial Branch to the Executive Branch. But this Court has explained that the Chevron framework rests on a presumption that ‘a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.’ (emphasis mine)
This could be the big enchilada, the case that fundamentally transforms America and American government from a modern, well-functioning nation into a third-world backwater where massive corporations and the billionaires they made rich, instead of We the People through elected representatives, set the rules. It’s corporate America’s wet dream.
It could fulfill Bannon’s and Trump’s promise to dismantle — or at least eviscerate — most of America’s regulatory agencies, leaving us all subject to the tender mercies of the country’s CEOs.
Now that the announcement has been made, expect this topic to go quiet until arguments begin this fall and a decision is announced, probably next spring. But you may want to hang onto this note for future reference, because it will roar back one day soon.
And knowing what’s coming down the road — and why, and from whom — is pretty important for those concerned with the future of our country and our children’s safety.
