The Supreme Court handed down what is likely to be one of its most consequential modern-day decisions on Friday.
Loper Bright Enterprises v. Raimondo fully consolidates the Court’s dominance over federal agencies within the executive branch of government. It is a radical reordering of the US separation of powers, giving the one unelected branch of government all of its own power, plus much of the power that Congress has vested in the executive branch.
Loper Bright overrules a decades-old decision, known as Chevron v. National Resources Defense Council (1984), which held that courts typically should defer to federal agencies when those agencies determine federal policy.
While this decision will undoubtedly be celebrated by Republicans — and especially Republican lawyers in conservative legal organizations like the Federalist Society, which have pushed for a decision like Loper Bright for years — the six Republican justices responsible for Loper Bright will likely come to regret Friday’s power grab.
Loper Bright transfers a simply astonishing amount of policymaking authority from federal agencies that collectively employ tens of thousands of people, to a judiciary that lacks the personnel to evaluate the overwhelming array of policy questions that will now be decided by the courts. This problem will be felt most acutely by the Supreme Court itself, which has only nine justices staffed by a bare handful of law clerks and a skeletal administrative staff.
The Court’s decision to seize this power is all the more puzzling because it has already given itself sweeping authority to veto nearly any decision by an executive branch agency that, in the Court’s words, involves a matter of “vast ‘economic and political significance.’”
The Court’s Republican majority, in other words, is already the final word on any policymaking question that Congress delegated to a federal agency, which triggers a partisan controversy. Loper Bright expands the Court’s authority so that it is also the final word on thousands of questions that hardly anyone cares about at all — questions like what the cable television rates should be on one of Hawaii’s islands, or how much nitrogen can be discharged by a wastewater treatment plant in Massachusetts.
The specific policy question in Loper Bright, for example, is whether the government or fishing vessels must pay for federal observers that sometimes must accompany those vessels while at sea — a question that virtually no one who doesn’t own a fishing vessel has any reason to care about whatsoever.
So Loper Bright makes the courts, and ultimately, the Supreme Court, responsible for resolving thousands of low-stakes policy questions, which often cannot be resolved simply by reading the law’s naked text.
The justices, in other words, can look forward to missing their children’s basketball games, skipping out on date nights with their spouses, and not really doing much of anything at all besides deciding the crushing weight of cases that are about to land on their desks.
Welcome to Hell, justices of the Supreme Court. It is a Hell of your own making.
So what is Loper Bright actually about?
Loper Bright overrules a Reagan-era Supreme Court decision known as Chevron v. National Resources Defense Council (1984), which held that when a federal statute delegating policymaking authority to an agency is ambiguous, courts typically should defer to the agency’s reading of that statute rather than trying to resolve the ambiguity itself.
The reasons for this deference were twofold. As Chevron explained, “judges are not experts” in the kind of difficult policy questions that come before federal agencies. Think of questions like whether a product derived from red rice yeast, which purportedly helps promote healthy cholesterol levels, counts as a “drug” or a “dietary supplement” under federal law? Under Chevron, this question would be decided by FDA officials who’ve spent decades studying drugs and dietary supplements. Now it will be resolved by political appointees with law degrees and black robes.
The other justification for Chevron is democracy. “While agencies are not directly accountable to the people,” the Court said in Chevron, the leaders of agencies are political appointees, and they answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices,” rather than placing that power in the hands of unelected political appointees who serve for life.
Chevron was initially celebrated as a triumph by many prominent Republicans. It was 1984 and President Ronald Reagan was cruising to a landslide reelection, and Republicans appeared likely to control federal agencies for years into the future. Many federal courts, meanwhile, were still dominated by liberal Johnson and Carter appointees who were prone to striking down the Reagan administration’s deregulatory actions. So Chevron meant that those courts would have to butt out and let Reagan and his appointees determine the direction of government.
One of its biggest cheerleaders was Justice Antonin Scalia, the conservative icon, who predicted in a 1989 lecture that “in the long run Chevron will endure and be given its full scope” because it “reflects the reality of government, and thus more adequately serves its needs” than the alternative.
Beginning in the Obama administration, however, Chevron fell out of favor with the legal right, and the Federalist Society’s annual lawyers’ convention became a showcase of proposals seeking to disempower the administrative state. Many of the same Republicans who praised Chevron when it enabled Reagan-era Republicans to roll back regulations abandoned that view when President Barack Obama’s appointees were in charge of the agencies.
Federalist Society calls for Chevron to be overruled reached a fever pitch as Republicans consolidated more and more control over the Supreme Court. Why should policymaking authority be wielded by the Executive Branch, which will sometimes be controlled by Democrats, when it could be wielded by a judiciary firmly in Republican Party hands?
And so Roberts’s opinion for himself and his fellow Republican justices is an ode to judicial power. The framers “envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts,’” Roberts declares in Loper Bright. Indeed, his opinion seems to deny even the possibility that statutes are sometimes ambiguous and subject to multiple plausible interpretations.
Courts, he writes, “understand that such statutes, no matter how impenetrable, do — in fact, must — have a single, best meaning.” And so he holds that he and his fellow oracles will not simply resolve ambiguities in statutes delegating power to agencies, but that their resolution of these cases necessarily determine that only one possible interpretation is “best.”
But the facts of Chevron itself belie any claim that every law has a single “best” meaning that can be determined by diviners wearing black robes. That case involved a law requiring certain power plants to obtain a permit if they built or modified “stationary sources” of air pollution — an ambiguous phrase that raises an obvious question: “What is a stationary source?”
During the Carter administration, the EPA determined that this phrase means any ”identifiable piece of process equipment,” which meant that a plant that wanted to modify a single piece of equipment often had to obtain a permit. Reagan’s EPA, by contrast, changed this rule to only require a permit if the entire plant would produce more emissions after individual pieces of equipment were modified.
Truthfully, both of these constructions of the statute were equally plausible. But Chevron ensured that this difficult policy question would be resolved by environmental policy experts overseen by politically accountable people — if voters preferred Carter’s rule to Reagan’s, they could have elected a new president who took a more expansive approach to environmental regulation. Loper Bright, by contrast, rests on the fiction that there is one “best” interpretation of all laws, and it is the interpretation preferred by entirely unaccountable judges.
Loper Bright turns the Supreme Court into micromanagers of an astounding array of minor policy questions
One of the most baffling things about Loper Bright is that the Supreme Court already gave itself an unchecked veto power over any agency action it deems too economically or politically significant — a power it’s wielded ruthlessly to strike down Biden administration policies that garner strong objections from Republicans.
Often these cases, which are known as “major questions” cases, permit the justices to veto agency actions that are clearly and unambiguously authorized by federal law. The most egregious example is Biden v. Nebraska (2023), which struck down President Joe Biden’s student loan forgiveness plan despite a federal statute which gave the Secretary of Education sweeping authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency” — an emergency such as the COVID-19 pandemic.
So, before Loper Bright, the Court’s Republican majority already had the power to overrule any agency action that garnered political controversy, effectively replacing a Democratic president’s policy with one preferred by the GOP. After Loper Bright, the Court is now the final word on a broad range of policy questions that hardly anyone cares about, but that are very important when taken in the aggregate, and that often involve hyper-technical questions that are far beyond the justices’ expertise.
How much nitrogen may be discharged by a wastewater treatment plant in Taunton, Massachusetts? Is there “effective competition” between cable TV providers and streaming video providers in Kauai, Hawaii? Does the process of mixing and bagging sand constitute “milling,” which is regulated under the Mine Safety and Health Act, or “manufacturing,” which is regulated under the Occupational Safety and Health Act? Which electrical facilities are “used in local distribution or only for the transmission of electric energy in intrastate commerce,” and therefore exempt from certain federal regulations? Does a service that streams live programming over the internet qualify as a “cable system” under the Copyright Act?
Federal courts will soon be inundated with lawsuits forcing them to decide questions like these, which, under Chevron, have been the ken of federal agencies. And there’s simply no reason to think that some guy with a juris doctorate and a judicial commission will know how to handle these questions. Instead of leaving questions about, say, cable TV rates to officials in the Federal Communications Commission who have spent their careers studying those questions, they’ll now be resolved by lawyers who know little, if anything, about telecommunications.
Because lower court judges typically have no real expertise in any of these questions, moreover, policy questions that have historically been resolved by agencies are likely to cleave the federal courts down the middle, forcing the justices to resolve countless disagreements among federal circuit courts.
The one good thing that can be said about Loper Bright is that it does contain some language limiting its scope. Roberts concedes that the “best” meaning of a statute will sometimes be that an agency is “authorized to exercise a degree of discretion.” And, most likely to prevent the courts from being forced to relitigate every single challenge to a federal regulation filed in the last 40 years, Roberts also declares that “we do not call into question prior cases that relied on the Chevron framework.”
Loper Bright gives Roberts and his colleagues the final word on any new regulation issued by a federal agency, but it avoids the chaos of undoing four decades of previous decisions.
Still, Loper Bright is an earthquake that reorders US law, and that transfers a simply astonishing amount of authority away from democratically accountable officials and to a Republican judiciary. It is likely to lead to worse governance, more arbitrary decisions, and even more contentious judicial confirmations because so much now turns on which party controls the courts.
And the biggest losers of all may be the justices themselves. I hope that Chief Justice Roberts didn’t plan on seeing his wife and kids any time soon, because he can look forward to many long, boring nights in the office.
