The Supreme Court overruled decades of administrative law. What happens now?

Transcript

SCOTT DETROW, HOST:

Chevron is overruled. With those words this week, the Supreme Court upended decades of legal precedent and severely curtailed the power of federal agencies to make rules. Chevron is legal world shorthand for a major 1984 ruling that said lower courts should defer to federal agencies when laws passed by Congress weren't clear. And that's a big deal because these agencies are responsible for regulating many aspects of life in America, like immigration, clean air standards, agriculture and financial institutions. But in recent years, this doctrine has been the target of conservatives who think these agencies have far too much power. So what does this ruling mean for the future of administrative agencies and their power to regulate? Jody Freeman is a law professor at Harvard, where she teaches environmental and administrative law. Welcome to ALL THINGS CONSIDERED.

JODY FREEMAN: Great to be with you.

DETROW: Let's just start with this for those not up in the world of administrative law. Can you just give us the overview on what the Chevron doctrine is - or, I guess, was - and why it's so important?

FREEMAN: So these cases can be very arcane and hard to understand, but Chevron really boils down to something simple, which is that the agency, not the courts, gets the presumption to fill the gaps in the laws that they implement. And the reason this is important is that Congress tasks these agencies like the FDA or the EPA or the SEC with fulfilling the mandates that Congress passes on to them to protect the public health or protect the markets from fraud or ensure the food and drug supply is safe and effective. And in doing that every day, agencies encounter gaps or ambiguities or silences in the law, and the Chevron principle basically said courts should defer to agencies when they interpret the ambiguities in these statutes. And that's because the agencies are expert and also because they have experience, and they're politically accountable for the decisions they make whereas courts are not.

DETROW: So what happens now, though, based on this ruling? - because a lot of what you just said seems to no longer be the case.

FREEMAN: Yeah, based on this ruling, courts will decide every question that's important in interpreting these statutes. It's a massive power shift back to the courts and away from agencies. And to put this in context, this is part of a series of cases in which the Supreme Court has made it harder for agencies to do their job. So at every stage of the regulatory process, the court in a series of cases has set up obstacles, obstacles to agencies issuing rules, obstacles to implementing those rules and even obstacles to enforcing them. In a recent case just this week, the court basically said that routine penalty assessments that agencies do through in-house tribunals now, in many instances, are going to require a jury trial.

So all told what this means is it's harder for agencies to regulate. And I think that's in fact what all the petitioners who are bringing these cases want. They want to roll back agency rules. They want to make it harder for the federal government to do the business of regulating. And the Supreme Court has been a very sympathetic audience for that point of view.

DETROW: You've worked in climate policy in the Obama White House. You were part of the Biden transition team on climate policy. Any sense what not just this ruling, but the last few years of rulings for this court mean for broad efforts to regulate carbon dioxide, other pollution?

FREEMAN: Yeah, I think there's no question that the whole set of rulings that the court has issued, not just this year but over the last few years, has made it much more difficult to issue far-reaching regulations to address problems like climate change and really any other new challenges in a modern society and economy. The court has really inserted itself into granular policymaking that properly belongs in the executive branch. And I think what we've seen here is a real amassing of power in the Supreme Court. You know, these decisions are striking for their lack of humility. The court is rolling back decades of precedent here. It's a sea change in the field of agency regulation, and it's not just one case. It's a series of cases that are cutting back agency power and locating that power in the courts.

DETROW: How would you advise administration to move forward? Let's just stick with climate right now. Look, the Biden White House has set really ambitious end of decade goals for reducing carbon dioxide emissions It's kind of struggling to meet those goals as of right now - seems like it's getting much harder given this series of rulings.

FREEMAN: I don't think they're going to stop their work. They're going to keep issuing regulations because they have to. The Clean Air Act and other statutes says that they have to address these problems. But they will have to take the time to be more careful because the courts, they know, are going to be an uphill battle for them. And I think this case, overturning Chevron and the other related cases, are really an invitation to petitioners to litigate more often, to challenge more agency rules because they know that the agencies no longer enjoy a sort of presumption of regularity. And they know that the courts are going to be very skeptical and very open to arguments that the agencies have gone too far.

DETROW: How successful has the broader conservative effort in legal circles to dismantle the administrative state - that's a term we've heard so much - how successful has that been at this point?

FREEMAN: Yeah, I think so far that the folks who are really anti-regulatory who sort of want to roll us back to the 1930s where the private market operates with far fewer, if any, constraints - I think they're having a lot of success. They've got six conservative justices on the Supreme Court very open to their arguments. I wouldn't say we're at the stage of dismantling the administrative state, but we have a series of nicks and cuts and bruises and bumps that are making it much harder for federal agencies to do their jobs.

And what's most striking to me is the tone and tenor in these opinions about the federal government - very dismissive of the government, really no respect for the important job that these agencies do protecting Americans' public health, protecting the markets from fraud, etc. So it's an attitude shift, and the attitude is an anti-government attitude. I think the conservative activists who are trying to push this agenda, this anti-regulatory agenda, are meeting with a very sympathetic set of justices at the moment.

DETROW: What's the best way you would describe this to somebody as how would this affect their daily life, this ruling - this series of rulings?

FREEMAN: It's hard to see the effect of these government agency decisions in a super direct way, but we don't realize how much we take for granted. You know, these agencies make sure the food and drug supply is safe. They make sure the water that we swim in and drink is safe, that the air we breathe is safe. They engage in consumer protection. They make sure the markets are free of fraud. A lot of the work of these agencies is invisible, but it goes on in a way that guarantees public health and safety. It's really important day-to-day work. And if we gum up the works, if we interfere with the work that these agencies do - if we make it harder, more expensive, more costly - that's going to result in far less protection for everyday Americans.

DETROW: That's Jody Freeman. She teaches administrative and environmental law at Harvard. Thanks so much.

FREEMAN: Thank you. Transcript provided by NPR, Copyright NPR.