The U.S. Supreme Court last week by the now conventional 6-3, conservative v. liberal, margin tossed out the 40-year-old precedent on how courts should review disputes in cases before it involving interpretations of ambiguous technical laws Congress has passed.
The latest reversal of precedent – which this court often honors more in the breach than in its defense – was no surprise.
The 1984 ruling came in a case, Chevron v. Natural Resources Defense Council, when the court ruled that a Reagan administration policy under the Clean Air Act relaxing regulations was valid, despite lower court rules overturning the Environmental Protection Agency. Looking at the recent ruling, SCOTUSblog observed that the original ruling “was generally hailed by conservatives at the time.” The influential blog also noted that the “decision was not necessarily regarded as a particularly consequential one.”
It soon became one of the most consequential legal precedents in recent federal legal history. According to Adam Liptak writing in the New York Times, “There have been 70 Supreme Court decisions relying on Chevron, along with 17,000 in the lower courts.”
In recent years, Chevron has become a target of right wing judicial radicals, led by the hard right Federalist Society. They have offered Chevron as a prime case of what they claim is the rise of the deep administrative state, enacting policies never contemplated by Congress.
Chevron yes! Chevron no!
Last week’s case contains an amusing historical irony. In a 2005 Supreme Court case, National Cable & Television Association v. Brand X Internet Services, aka “Brand X,” the court by 6-3 upheld a George W. Bush Federal Communications Commission rule on network neutrality, which found for the incumbent providers and against an upstart, competing internet service provider. The court deferred to the agency’s expertise, citing Chevron deference.
Writing for the Brand X majority, Justice Clarence Thomas wrote, “Since Chevron teaches that a court’s opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative, the agency’s decision to construe that statute differently from a court does not say that the court’s holding was legally wrong. Instead, the agency may, consistent with the court’s holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes.”
Writing as a member of the majority in last week’s decision, SCOTUSblog reported that Thomas “penned a brief concurring opinion in which he emphasized that the Chevron doctrine was inconsistent not only with the Administrative Procedure Act but also with the Constitution’s division of power among the three branches of government. The Chevron doctrine, he argued, requires judges to give up their constitutional power to exercise their independent judgment, and it allows the executive branch to ‘exercise powers not given to it.’”
Last week’s case – a combination of two challenges to a basically moot National Marine Fisheries Service rule about how to implement catch limits – made it to the court solely on the desire to review Chevron, not on the merits of the underlying Commerce Department rule. In the majority opinion, Chief Justice Thomas Roberts noted that the court took the case “limited to the question whether Chevron should be overruled or clarified.”
The Roberts majority “clarified” Chevron by hammering it over the head with the Administrative Procedures Act. He wrote, “The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.”
Then Roberts went out of his way to downplay the impact of the decision overturning 40 years of precedent, a “don’t worry, be happy” exercise. He asserted that agencies are not better suited to understand the implications of a law with technical and scientific ambiguities, eluding these by emphasizing that “Congress expects courts to handle technical statutory questions….” Beyond that, he writes that Chevron has become a dead letter, worthy of interment: “This Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. See Cuozzo, 579 U. S., at 280 (most recent occasion). But Chevron remains on the books. So litigants must continue to wrestle with it.”
What about the power of precedent? Roberts dances a stare decisis two-step. He writes: “The only question left is whether stare decisis, the doctrine governing judicial adherence to precedent, requires us to persist in the Chevron project. It does not. Stare decisis is not an ‘inexorable command.’ Translation: when it gets us to our preexisting policy goals, it’s gold. When it denies our desires, it’s dross.
Gigglegas Gate
Just how well the court deals with technical and scientific issues was inadvertently on display just as the court was burying Chevron. The day before the Chevron decision the court by the usual 6-3 vote put on hold on a decision challenging the Environmental Protection Agency’s latest attempt to resolve a decades-long dispute over air pollution that originates in one state and crosses into other states, currently termed the “good neighbor” plan. The court iced its proceeding while multiple challenges brought by several states and industries continue wending their way through lower courts.
The opinion written by Justice Neil Gorsuch, as originally published, consistently made references to what he claimed is an EPA-regulated air pollutant, “nitrous oxide.” As Forbes quickly reported, numerous social media sites quickly pointed out that nitrous oxide (N₂0) is not a regulated air pollutant (although it is a strong but minor greenhouse gas), but a mild anesthetic commonly known as “laughing gas.”
Mirabile dictu, the opinion was quickly replaced to refer to “nitrogen oxide,” although the more correct term would have been NOx, referring to multiple oxides of nitrogen other than nitrous oxide. Gorsuch and his clerks should be singing:
“Don’t know much about chemistry.
Don’t know much biology.
Don’t know much about the math I took.
Never looked at a science book.”
On Twitter, noted lawyer Lawrence Tribe commented, “Justice Gorsuch unwittingly shows the folly of the Court’s replacement of agency expertise with judicial arrogance when he confuses smog-causing nitrogen oxide with laughing gas.” Call it “Gigglegas Gate.”
–Kennedy Maize