Plain Meaning
If they up their game, the agencies can still influence courts.
The textualist approach focusing on the plain meaning of the legislation stands in contrast to trying to divine the intent of the legislation. The objection to Loper is that plain meaning is useless in highly technical cases. Of course, there is nothing to prevent courts from paying ‘great respect’ to the opinion of agency experts. Congress can delegate authority explicitly, as well. Though, the author believes that the Supreme Court may deem this unconstitutional.
‘First, it authorized executive branch agencies to interpret federal law and forced courts to accept agencies’ reasonable interpretations. However, since the Supreme Court’s 1803 decision in Marbury v. Madison, it has been the duty of courts – not federal agencies – to say what the law is.
‘Second, Chevron deference arguably allowed federal agencies to grab more regulatory authority than Congress intended them to have, usurping the legislative branch’s responsibility to make law and delegate authority.’
The Takeaways from Three Supreme Court Rulings
This sounds correct. Chevron was already on the ropes. Loper merely cleans up the picture and restores Congressional primacy.
Congress can delegate legislative powers to the agencies. As long as the agencies don’t exceed what Congress permits, then their activities are acceptable.
What if new laws are more explicit in delegating to the agencies the power that they abused with the Chevron doctrine? Will Congress take this path? Is that possible given polarization?
‘Bottom line: Loper Bright might not be as big a deal as some say. The Chevron doctrine was already full of holes. Loper Bright may ultimately be seen less as a judicial power grab and more as part of a line of recent Supreme Court decisions reimposing needed checks and balances on federal agencies.’
The Administrative State Loses Again
Imagine trying to bring an action against a regulator once a new rule is promulgated but before the plaintiff is harmed. There would be a flurry of arguments about standing, presumably. No harm, no foul.
Attempts to restrict the window in which litigants can challenge regulation failed in Corner Post.
‘The little guy has scored another big victory at the Supreme Court against the administrative state. A 6-3 majority on Monday ruled that the shot clock for challenging agency regulations begins only when a party is first harmed, not when the rules become final (Corner Post v. Board of Governors, Federal Reserve).’
Forget the debate, the Supreme Court just declared open season on regulators
Author here takes the case that judges will be incapable of deciding on issues that have any technical bent, replacing agency experts who would arrive uniquely at the correct answer every time. This will, apparently, cause chaos.
It is strange to argue that the permanent civil service is “accountable to the political process.”
An alien from Mars might read this and think that the agencies would be consistent in their rule-making. The oscillating approach to so-called “net neutrality” suggests otherwise. It is partisanship without the accountability of laws.
The article seems to argue in favor of regulatory supremacy by positing that the democratically elected members of the legislative branch are too stupid to do their job.
‘As Kagan argued, summarized again by Howe:
‘Kagan cited as one example a hypothetical bill to regulate artificial intelligence. Congress, she said, “knows there are going to be gaps because Congress can hardly see a week in the future.” So it would want people “who actually know about AI and are accountable to the political process to make decisions” about artificial intelligence. Courts, she emphasized, “don’t even know what the questions are about AI,” much less the answers.’
The Consequences of Loper Bright
Cass Sunstein thinks that administrative law rulings will become partisan. Of course, he does not mention the possibility that the regulators themselves may have been acting in a partisan manner.
Given the response in the press, he is likely right.
Why has the revulsion at Loper been so partisan? Now, that’s an interesting question.
‘It is safe to predict that in the near future, the combination of Loper Bright with increasing judicial skepticism about the administrative state will result in a nontrivial increase in invalidation of regulations designed to protect health, safety, and the environment. It is also safe to predict that in the near future, Loper Bright will lead to a significant increase in ideological divisions in the lower courts.‘
Court says bureaucrats can no longer make laws. Will Congress?
If Congress makes laws going forward at its current pace, the promulgation of new rules outside of a crisis may be frozen.
‘In effect, Chevron allowed the executive branch agencies to make laws, even though the Constitution says only Congress should make laws.
‘But that doesn’t mean Congress will make laws.’
Agencies, Schmagencies: The Future of Federal Regulation After SCOTUS Tossed Out ‘Chevron’
In addition to the objection that courts aren’t technical experts, the other big objection to Loper appears to be the assumption that courts will just strike down “regulations it doesn’t like.”
Color me skeptical, but this is of a piece with the Sunstein prediction of more partisan judgments. Forum shopping for political bias? That seems like overly simplistic thinking to me.
‘Because Ohio was such an overreach, we can anticipate that the upshot of Loper Bright is that the Court will continue to grab lawmaking power for itself by striking down regulations it doesn’t like—for whatever reason and without a whiff of concern for expert agencies’ contrary judgments.
‘Another problem is that the lower courts will now have to figure out whether agencies get any deference anymore. On that front, some commentators have brought up a pre-Chevron test contained in a 1944 decision called Skidmore v. Swift & Co. It is true that that precedent is left intact under Loper Bright. But that case just laid out a bunch of factors courts could use to give agencies optional deference if an agency’s regulation is particularly persuasive. Step two of Chevron was more definitive. So Skidmore doesn’t meaningfully constrain courts from becoming policymakers-in-chief. Meanwhile, Congress, agencies and regulated industries have been functioning with the backdrop of Chevron for decades. All of that is now in flux.’