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Judicial power grab?

By overturning the Chevron deference, justices seek power without accountability


The conservative activists on the U.S. Supreme Court appear eager to take an axe to one of the most important and widely-cited legal precedents in American jurisprudence using a case involving herring fisherman as pretext.
The case itself involves the relatively minor question of who should pay for federal inspectors who ride aboard fishing vessels to ensure compliance with regulations. But it appears the activists on the court are ready to use the case to go far beyond the question at hand to wipe away a much more consequential precedent, stemming from a case known as Chevron USA v. Natural Resources Defense Council.
Overturning the legal apple cart, unfortunately, has become a pattern with the current Supreme Court, and it’s contrary to the longstanding tradition of what’s known as judicial modesty, which calls for judges to limit their rulings to the narrow questions laid out in any particular case. The majority on the current high court has a clear political and policy agenda and it’s been selecting cases for years as pretexts to overturn longstanding precedent and federal laws they oppose on ideological grounds. The case of the herring fishermen is just the latest example.
The Chevron ruling, which was the unanimous decision of a Republican-dominated court in 1984, held that courts should give executive branch agencies at least a modicum of deference when they make decisions or set regulations or policies based on their understanding of the sometimes ambiguous laws passed by Congress. Essentially, the court found that if federal agencies had based their actions on a reasonable reading of the language passed by Congress and signed by the President, the courts have no business second-guessing those decisions. That’s judicial modesty.
Back in the 1980s, when federal agencies were run by Republican presidents whose decisions were often challenged by more liberal groups, conservatives loved the Chevron precedent, which has now been cited in more than 15,000 lower court decisions on a vast range of issues. But times have changed. A Republican has won the popular vote for president just once in the past 35 years and the federal agencies under Democratic presidents have become modestly more aggressive in trying to regulate the abuses of big business. Which means Chevron doesn’t serve corporate interests like it used to.
The current high court has already taken some swipes at Chevron over a series of cases but based on questions and comments from several of the conservative justices in oral arguments last week, it appears they may be ready to throw the whole thing out. The only question is whether they can muster a majority to do so.
The current argument for undoing Chevron, which is that Congress, rather than federal bureaucrats, should determine the intricacies of federal regulations, is disingenuous at best. Congress can barely pass a budget much less craft the fine details of federal regulations. Since the nation’s founding, Congress has passed legislation that set broad goals and delegated much of the detail of implementing those goals to the executive branch, which is expected to employ individuals with expertise in the subject matter at issue.
The reality is that wiping away Chevron won’t restore authority to Congress, quite the opposite. Eliminating Chevron shifts power exactly where corporate America wants to see it today, to conservative federal judges, who could now have carte blanche to substitute their own views for those of federal agencies. Unlike the federal bureaucrats, the judges who may ultimately now be tasked with deciding complex regulatory cases, involving everything from nuclear power plants to food safety, may well have little or no knowledge or background in the subject matter at issue. And, unlike the bureaucrats, judges aren’t subject to being hauled before Congress for grilling if members don’t agree with how they’re interpreting federal law. Agency officials, while they may not be elected, are accountable both to their executive branch supervisors, as well as members of Congress.
The justices who sit on the Supreme Court, by contrast, are accountable to no one. They’re appointed for life and, as we’ve learned in recent months, they are happily accepting hundreds of thousands of dollars in gifts from wealthy benefactors, gifts that would land any Washington bureaucrat or member of Congress in a federal penitentiary for years. Unaccountable is the virtual definition of a Supreme Court justice. Which makes their potential power grab over Chevron all the more troubling.