Supreme Court just made it harder for federal agencies to regulate in sweeping ruling
In a momentous decision that will affect vast swaths of American life, the U.S. Supreme Court on Friday undid decades of regulatory law, making it far more difficult for federal agencies to issue rules and regulations that carry out broad mandates enacted by Congress. The vote, along ideological lines, was 6-to-3.
Writing for the court’s conservative supermajority, Chief Justice John Roberts explicitly overturned a 40-year-old precedent that had instructed lower court judges to defer to reasonable agency interpretations of ambiguous federal statutes. Acknowledging that some of the court’s most conservative members had initially proposed or embraced that idea, Roberts said that time and experience had proved the approach “unwise,” “misguided,” and “unworkable.”
The 1984 decision, he said, is contrary to the Framers’ understanding or our form of government. Roberts went on to quote Chief Justice John Marshall’s famous 1803 decision in Marbury v. Madison declaring that, “[i]t is emphatically the province and duty of the [judiciary] to say what the law is.” That, said Roberts, means that courts, not agencies, decide what the law is, and if Congress wants to do something different, it should say so explicitly.
Justice Elena Kagan took the rare step of announcing her dissent from the bench on behalf of the court’s three liberals.
“Agencies report to the president, who in turn answers to the public for his policy calls,” she said. “Courts have no such accountability,” nor do they have the kind of expertise that agencies have to carry out broad mandates from Congress. Today, she said, a four decades-old “rule of judicial humility gives way to a rule of judicial hubris.”
“As if [the court] does not have enough on its plate,” she added acerbically, “the majority turns itself into the country’s administrative czar,” giving itself the power to determine what rules will govern AI, or the nation’s health care or transportation systems, or even the environment. “That is not a role that Congress gave to [the courts],” Kagan asserted, but “it is a role this court has now claimed for itself, as well as for other judges.”
Case Western law professor Jonathan Adler, generally agreed with Friday's ruling, though he added that it may make it harder for the executive branch to react to major crises, like the COVID pandemic, or sudden disasters in the financial world: “This decision will make it more difficult for future administrations to change policy without going to Congress,” he said, noting that if there is a second Trump administration, “they will find out what it’s like to get what they wished for because, in a lot of contexts, it will be hard to dramatically change the way various federal statutes are implemented.”
The consistent message of Friday’s decision, Adler said, is that agencies can’t interpret old statutes to fix new problems. As he put it, “agencies don’t get to pour new wine out of old bottles.” They have to go back to Congress when a new problem arises.
Does that mean that all the agency regulations of the last 40 years can now be challenged? Chief Justice Roberts seemed to say that the answer to that question is “No.” What’s done is done.
But Georgetown law professor Stephen Vladeck cautions that it’s not that easy because there are many regulations that nobody thought to challenge before. “I think there’s no way of looking at today’s ruling as anything other than a jobs program for lawyers and for judges,” said Vladeck, “because what it really is, is a massive transfer of the critical decision-making authority from these agencies—who, even if they’re not elected, are directly subservient to the president—to unelected federal judges.”
And Richard Hong, who served for 17 years as an SEC lawyer, calls Friday’s decision a “game changer.” He notes that Friday’s decision to overrule Chevron must also be understood in the context of Thursday’s decision to prevent agencies like the Securities and Exchange Commission from imposing civil penalties for fraud without a formal jury trial: “If yesterday’s SEC v. Jarkesy decision was causing tremors, causing some dishes to tumble out from the cupboards, today’s case is a Richter-7 earthquake - the magnitude of the Hiroshima atomic bombing,” he said.
David Doniger, a lawyer for the Natural Resources Defense Council, has been involved in these regulatory questions for 40 years and worries that judges of all political stripes will substitute their policy judgments for agency judgments.
“You may have a random judge in Amarillo deciding on the safety of heart medicines or clean air for our kids, or rules to keep the doors from blowing off airplanes," he said. "Judges will now be able to essentially rewrite our laws.”
Ironically, 40 years ago, Doniger actually argued the case the Supreme Court reversed today. He was on one side, and on the other was the Reagan administration’s Environmental Protection Agency, headed by Anne Gorsuch, mother of now Supreme Court Justice Neil Gorsuch. Back then she wanted and got more power to change the rules. Today, Justice Gorsuch was a strong supporter of overturning the decision that his mother’s EPA won 40 years ago.
Transcript
MICHEL MARTIN, HOST:
The U.S. Supreme Court this morning undid decades of precedent in the area of government regulation. It made it far more difficult for federal agencies to issue rules and regulations that carry out broad mandates enacted by Congress. It also issued a closely watched opinion related to January 6. Joining us now with analysis is NPR legal affairs correspondent Nina Totenberg. Nina, hello.
NINA TOTENBERG, BYLINE: Hi there. I'm not sure we could really call this deep analysis because we had an hour of - almost an hour of justices reading opinions and dissents in several cases, and I have just in the last few minutes gotten down to our microphones at the Supreme Court.
MARTIN: All right. Well, we'll do our best, and we know we'll hear more...
TOTENBERG: Yes.
MARTIN: ...From you later on All Things Considered, but let's look first at this case on the government's regulatory authority. This is the case that I think we're calling the Chevron case. What did the justices decide?
TOTENBERG: Chief Justice John Roberts, writing for the conservative supermajority on the court, overturned a case called Chevron v. the National Resources Defense Council, which was a case that, 40 years ago - which was not very controversial then - said, look, these very big regulatory cases involve minute questions, and Congress here enacted this big law. This was the Clean Air Act, I think. And the agencies are meant to interpret how to enforce the law. And if Congress's intent is ambiguous, if you can't really tell, we, the court, will defer to the agency.
Well, that has become something of the bete noire to big business and to those opposed to what they call the administrative state. And today, the Supreme Court overturned that four-decade-old decision. Chief Justice Roberts said that the framers, at the beginning of the founding of this nation, said that the courts are to say what the law is. And that's one of the reasons that the courts with lifetime tenure are insulated from political influence. He said that in 1946, Congress codified that idea in the Administrative Procedures Act, and that means that courts, not agencies, decide questions of law. If Congress wanted to do something else, it should have said so.
Now, however, whenever there is an ambiguous provision, it is ultimately the courts that will decide if the agency's interpretation is correct. A statute, he said, might be ambiguous for many reasons. The case that started all of this, Chevron, he said, doesn't prevent judges from making policy. It prevents them from judging, and that's why we're overturning this decision, although he went out of his way to say that this doesn't affect any past rulings, regulatory rulings. This is the rule from here on forward.
MARTIN: I understand that Justices Thomas and Gorsuch had concurring opinions. What about the dissenters? What did they say?
TOTENBERG: Well, Justice Elena Kagan, in an unusual oral dissent from the bench, said, today, the court rejects a doctrine of judicial humility. And she said - I'm just pulling up the right page in her opinion. She said, today, it has flipped the script. The courts, rather than the agency, will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. And she said that, as if the court didn't have enough on its plate, the majority turns itself into the country's administrative czar. So she was pretty hot under the collar, and she said, we're going to be dealing this with this forever. It is impossible to pretend, she said, that today's decision is a one-off in either its treatment of agencies or its treatment of precedent because the court overturned a long-standing precedent and did so explicitly because it said it was necessary.
MARTIN: Do you want to say a little bit more about how we got here, given that this was a 40-year-old precedent?
TOTENBERG: It's very interesting because, as I said earlier, when this decision - this decision was written by a moderate Republican appointee to the court. It was not particularly controversial when it was announced. The idea was that agencies have expertise that the judges don't. And that was the point that Kagan made in her dissent. And I think the court was just tired of trying to figure out how to handle, as she put it in her oral dissent, whether one group of squirrels is treated the same way as a different group of squirrels under the Endangered Species Act because the Wildlife Service has that expertise, but judges don't. And, she says, the court didn't today say what the standard of review should be adopted by the courts. But it's going to make - the courts will now become the policymakers-in-chief, so Justice Kagan said, instead of limiting their role to a narrower field of interest.
But one would have to say that, as the chief justice pointed out, the court has not actually cited the Chevron precedent in five years. It's been very clear that it was moving away from that. And instead, it's adopted, I have to say, a different standard. If Congress adopts a - if an agency issues a rule that has major effects on the economy, well, that's a major holding, a major rule. And when there's a major rule, you have different rules. So I don't think this has gotten us a lot further.
MARTIN: We need to save some time to talk about one other important opinion. This is related to the January 6 mob attack on the Capitol. Tell us about that as briefly as you can.
TOTENBERG: Yeah. This was a case brought by one of the invaders of the Capitol, who pled - I think he pled guilty to - in order - to a crime in order to get done, but he preserved his - actually, he didn't plead guilty. Forgive me. In the end, the court - what the court did in this case is say that the most - the law with the greatest penalty that was used to punish some of the offenders, not the - you know, some of the offenders who were invaders, not the ringleaders - that the - you can't use that law because it wasn't intended to cover this kind of conduct.
MARTIN: All right. She will...
TOTENBERG: And therefore, some people will have lesser sentences.
MARTIN: OK. That is NPR legal affairs correspondent Nina Totenberg, who will have much more on All Things Considered later today. Nina, thank you.
TOTENBERG: Thank you, Michel.
MARTIN: And this is NPR News. Transcript provided by NPR, Copyright NPR.
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