Killing the Administrative State

by Jack R. Johnson 02.2024

Killing off big government has been a mantra on the right since Ronald Reagan quipped, “Government is not the solution to our problem, government is the problem.” Usually, the right’s effort at killing off big government involves reducing tax revenues, but a case currently before the US Supreme Court funded by the infamous Charles Koch is different in a particularly dangerous way. It doesn’t want to starve the beast so much as pull it apart toe by toe, limb by limb. How? By dismantling the Federal government’s regulatory power, the so-called administrative state, one regulatory decision at a time. The impact of such a legal decision might be felt on everything in our lives, from a woman’s right to choose, to the quality of the air we breathe.

In 1984, the National Resource Defense Council (NRDC) was trying to get the Environmental Protection Agency (EPA) to enforce pollution controls at industrial facilities under the Clean Air Act. The agency under rabid anti-regulation advocate Anne Gorsuch was more inclined toward industry-friendly deregulation than decreasing pollution. Citing statutory ambiguity, Reagan’s EPA offered an interpretation that was—no surprise—much more to the liking of Chevron. The court ultimately ruled in favor of the agency. It gave President Ronald Reagan’s EPA greater latitude to interpret the intent of the Clean Air Act, a decision which became known in legal circles as the Chevron doctrine or Chevron deference, deferring to the opinion of the Federal administrative regulatory body as they would likely have more technical expertise in interpreting ambiguous language. In a 1989 law review article, Supreme Court Justice Antonin Scalia praised Chevron, saying it “more accurately reflects the reality of government, and thus more adequately suits its needs.”

There’s some truth to that. In its relatively brief life span, the so called Chevron deference has been cited in 11,760 judicial decisions and 2,130 administrative decisions, and it continues to accumulate judicial citations at the rate of about 1000 per year. 

The case currently before the Supreme Court, Loper Bright Enterprises v. Raimondo could potentially remove that authority. According to the NRDC, the case pits the owners of a New England fishing company against a federal agency, the National Marine Fisheries Service (NMFS). The Magnuson-Stevens Act sets catch limits to help prevent over-fishing and requires fishing boats to have a government-appointed inspector onboard to monitor compliance. Fishing companies incur the cost of these monitors—in Loper Bright’s case, about $700 a day—but the company has argued that NMFS has no authority to force it to do so. A district court disagreed, reasoning that Congress left that question open for the agency to decide. Applying Chevron, the court deferred to NMFS’s choice that the boat owner should pay. A federal appeals court affirmed this decision. The plaintiffs, assisted by lawyers on the payroll of the Koch brother’s Americans for Prosperity, then appealed to the Supreme Court, which in May announced that it would be taking up the case.

It’s interesting to note that former President Donald Trump — with the backing of the Federalist Society —filled federal courts with conservative judges who are vocal critics of the Chevron deference. And one of Trump’s Supreme Court picks, Justice Neil Gorsuch, has called on his colleagues to stamp out the doctrine once and for all. Neil Gorsuch, of course, is the son of Anne Gorsuch, who was head of the EPA when the Chevron case was decided—in her agency’s favor.

Back in the day, Anne Gorsuch cut a defiant figure in early 1980s Washington as she slashed air and water quality regulations. She fought with environmentalists, was held in contempt by Congress and eventually resigned under pressure from the Ronald Reagan White House that had championed her. Her memoir was, appropriately entitled: “Are You Tough Enough?” Her son Neil Gorsuch, a Supreme Court justice since 2017, apparently possesses that same anti-regulatory zeal. It’s a small, incestuous world at the top, even at the Supreme Court.

Gorsuch and other like-minded judges have said that overturning Chevron would force administrative agencies to regulate in ways that are more clearly within the bounds of what Congress — the branch of government most closely tied to the voters — has authorized them to do. But Chevron’s proponents have pointed back to the positions of the doctrine’s early supporters — like the late conservative Justice Antonin Scalia — that deference protects expert agencies from the whims of non-elected judges serving lifetime appointments. Afterall, Chevron v. NRDC, the originating decision was considered a victory for Chevron at the time.

Renée Landers, a law professor at Suffolk University asked this simple question, “Why is it better for [federal judges] to be deciding complex issues of regulatory policy instead of the agency to which Congress has delegated much of the power?” 

Landers pointed to a recent ruling by a judge in Texas that blocked access to abortion pills, despite years of Food and Drug Administration approval and research, as one example of the dangers of shifting power from agencies to the courts at the federal level.

“We’re going to have random judges — or one judge in a federal district court in Texas — exercising the control,” said Landers. In fact, Kacsmaryk, the federal judge in Texas who suspended the use of the abortion pill, could eventually play a big role in stopping the Biden administration's efforts to tackle climate change.

Given the conservative makeup of our current judiciary, vacating the Chevron doctrine could affect everything from a woman’s right to choose, to worker protections, safe food, and clean water across multiple states. Ultimately, it could impact our ability to handle climate change and maintain a habitable planet: something we might want a technical expert to decide rather than a politically connected judge.