Loper Bright Enterprises v. Raimondo

We'll hear argument next in case 22451, Loper Bright Enterprises vs.

Raimondo.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Loper Bright Enterprises v.

Raimondo.

This is a case about Atlantic herring, like the fish.

But it's also about putting the final nail in the coffin of chevron deference.

deference.

Chevron is, or was, a judicial doctrine that requires that judges defer to experts at federal agencies when a law is unclear.

The reason it's significant is because it has enormous implications for the administrative state in the United States of America and all federal agencies and their ability to interpret the law.

The end of chevron deference means that the justices are now free to substitute their own whims for the guidance of experts.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have humiliated our nation, like me humiliating myself in front of a customer service agent.

I'm Peter.

I'm here with Michael.

Hey, everybody.

And Rhiannon.

Hi.

Imagine if Michael and I were like, okay, moving on.

We're not going to ask.

No.

And we're not like, oh, where were you?

How'd you embarrass yourself, Peter?

No, a couple years ago, I was was like, how am I going to keep coming up with metaphors?

And then I realized, just complain about all the shit that happens in your life.

Just be yourself.

Transition into venting about whatever nonsense happened to me that day.

And that's the first half of every 5'4 episode.

Yeah.

That's what good podcasting is like.

Not doing a metaphor about Kamala Harris.

That's played out.

Wow.

I'm complaining about the fact that I...

made myself look like an absolute asshole today because I tried to pay a bill online, had had to create an account, and I was clicking a button that's like, verify your email, and nothing was happening.

And so I eventually called them and I was like, Hey, trying to create an account, but it's not letting me verify the email.

And she's like, Did you try clicking the button?

And I was like, Yeah, you stupid idiot.

Of course, I tried clicking the button.

I tried this a thousand times.

Why do you think I'm on the phone with you?

And then I clicked it while she was on the phone with me and it worked.

And I was like, Well,

I swear that it wasn't working before.

And she was like, all right, sir, you have a good day.

And I was like, fuck you.

No, no.

That's like my parents like calling me with like a cell phone problem.

And I'm like, well, did you click on this?

Go to settings and try this.

And they're like, yeah, I did it a thousand times, but now it's working.

And you're like, okay.

Well, happy for you.

You're like, okay, I don't know what you fucked up, but you're a dumb idiot somehow.

Yeah.

And that's what she was thinking about me.

A few months ago, a bunch of lights went out in my bedroom.

And I was like, huh, sure seems like a fuse popped or whatever.

Yeah.

You know, an outlet wasn't working.

It was all along like one half of the bedroom.

Electricity somehow.

Yeah.

So I go to the breaker panel.

I look at all the labels.

None of them have the master bedroom on it.

I remember that there's like a breaker panel outside.

So I go out back

and I try to open it and the door is like stuck.

Of course.

It's not opening.

It says like to pull down, but there's like a little like

hasp with a seal on it that says like Albuquerque Power, New Mexico, like a little seal that you have to like break to open.

And it's like, don't tamper with this.

And I was like, oh, I guess this is whatever.

So I call my electrician.

He comes over.

He checks the first breaker.

He's like, oh, it must be in the back breaker.

And I was like, okay.

And I go with him.

And he just tugs on it like a little harder.

And like the thing just slides down and opens.

And there's like a very clear switch marked bedroom.

And he just flips it.

And I was just like, okay.

Yeah, you drove 30 minutes out here to open a panel for me because I didn't pull hard enough on it.

Yeah.

Did you guys tell these people that you're podcasters?

Yeah, that's right.

That you podcast for a living?

I did have a moment where I was like, I swear I'm not stupid.

And she was like, we'll see you later.

So

I spend a lot of these interactions trying to prepare them.

For the fact that I know that I'm stupid.

I'm like, I'm sure I'm missing something obvious.

So when you find out that I am, don't talk to me like I'm a piece of shit.

Anyway, today's case,

Loper Bright Enterprises v.

Raimondo.

This is a case about administrative law, and it is a big one.

This is a case that overturned one of the most important cases in American law, Chevron, the Natural Resources Defense Council.

And in the process, this case is very likely to completely upend the ability of the federal government to get anything done.

Yeah, anything.

The issue here is about how federal agencies should function.

The way our federal agencies work is that Congress passes a law granting and explaining the scope of the agency's authority.

The agency then interprets that law and enforces it under the direction of the executive branch.

The question here is how much discretion those agencies have when interpreting the law.

So, for example, if the law says the EPA can, quote, regulate regulate emissions, the EPA has to interpret that to figure out what it can do, right?

It has to figure out what an emission is and what it means to regulate an emission.

In Chevron, a case from 1984, the court said that federal courts should defer to the agencies in how to interpret those laws, at least where the laws are ambiguous.

The idea being that the agencies involved tend to have the expertise to know what's going on in these arenas, and so they are better situated to interpret those laws than courts.

So chevron deference is just the idea that courts should defer to federal agencies in their interpretations of the law.

And here the court tosses it out the window.

Yeah, they really did totally obliterate chevron deference with this case.

So as we get into the background, maybe we can just start with a little bit about what chevron deference is, just building on what you've already been saying, Peter, and why chevron deference is so important.

So chevron deference is this rule about statutory interpretation, right?

It's how a law should be interpreted, but that rule represents something much bigger.

It represents like a certain relationship between the courts and the political branches.

Chevron deference kind of stands for the idea that when the two elected branches are doing policy work, are doing regulatory work through administrative agencies, courts should defer to those agencies' interpretations of the laws that lay out what those agencies should be doing, right?

So one elected branch, Congress, writes laws that delegate regulatory work to administrative agencies.

And then those agencies are housed in another elected branch, the executive.

And Chevron Deference says that the unelected branch, the courts,

should

be deferring to those administrative agencies agencies when there's a question about what Congress meant when it delegated certain powers to those agencies.

There are like thousands of court cases every single year where chevron deference is invoked, is used.

There are a ton of examples, literally, but I'll highlight like just a few here because it really illustrates like why the rule is so important because courts just do not have the expertise to decide some of these questions.

And Chevron Deference says: Look, we want the federal government to function properly.

We need to allow for the agencies themselves, in their expertise, to interpret their mandates.

So, just to go through some examples, in a case from 2020 in the DC Circuit Court of Appeals, this case is called Tiva Pharmaceutical.

The question that came to the court in that case was about alpha-amino acid polymers.

You know, in federal law, the FDA, the Food and Drug Administration, can regulate biological products, including proteins.

So, is an alpha amino acid polymer a protein?

Let's get Brett Kavanaugh on that.

Yeah, yeah, exactly.

Chevron deference, this kind of general rule that federal courts have used for the past 40 years, sort of says, you know what?

Judges aren't the best decider of this.

Judges don't have this expertise.

Let's let the FDA itself

decide if an alpha amino acid polymer qualifies as a protein that would then come under under its regulatory scheme.

Another case in 2007, this one from the Ninth Circuit, this was called Northwestern Ecosystem Alliance.

This was a question about which population segments and which genetic makeups of certain species could the Fish and Wildlife Service designate as an endangered species.

Chevron Deference says, well, you know, where the law is unclear, in this case, the law is the Endangered Species Act, where it's unclear about what the Fish and Wildlife Service has to do.

We're going to defer to how the Fish and Wildlife Service is going to define these things because courts are not the experts on regulating endangered species genetic makeups, right?

And then, you know, maybe just for the last example, there's the Chevron case itself, the case that the Chevron Deference Rule is named after, which was a case back in 1984.

And that was about the EPA's mandate in the Clean Air Act to regulate, quote, stationary sources of air pollution.

So the question that came to the court is, okay, like, what does stationary source mean?

Is it each individual piece of equipment inside a plant that emits air pollution?

Or is a stationary source of air pollution the entire plant itself?

You know, the Clean Air Act doesn't define every single thing so granularly.

No statutes do.

So the court in 1984, in the Chevron Chevron case established this rule of chevron deference so that the administrative agency itself, in that case, it was the EPA, could use its expertise to define what needed to be defined and get to work on regulating emissions, right?

So that's kind of a rundown.

That's chevron deference.

And boy, do conservatives hate that shit.

So way back like 10 months ago on our term preview episode, this was back in September.

We did it with Chris Geidner.

Michael, you gave a quick and dirty preview of this case, the one we're talking about today, Loper, and how conservatives like really wanted to get rid of chevron deference.

And so, Michael, you gave a list actually of all these like psychotic conservative foundations that had filed amicus briefs in the case.

There was the Atlantic Legal Foundation, the Pacific Legal Foundation, all these chambers of commerce, the Cato Institute, the Manhattan Institute, the Goldwater Institute, America First Legal Foundation, the NFIB, which was the group that came after Obamacare, gun owners of America, like on and on and on.

And so it's like, Jesus, like these people really hate chevron deference.

Now, why would that be?

Of course,

it's because conservatives hate regulation.

And, you know, conservatives in Congress, they can attack regulation and regulatory schemes being passed in Congress, but administrative agencies housed under the executive branch have a lot of delegated power from Congress to carry out regulations and enact policy.

And Chevron Deference says courts have to defer to those agencies on some of these tricky questions.

So conservatives, naturally then, have been coming after Chevron Deference because they want courts to be able to step in and to strike down regulation.

So let's turn to this case specifically.

But to be honest, to tell you about the facts here would be a disservice to the listener because the facts are so complicated and stupid and boring that it'll like, it's going to make you drive your car right onto the train tracks.

Here's all you need to know.

In 1976, Congress passed the Magnus and Stevens Act, which gave the National Marine Fisheries Service, the NMFS, power to regulate overfishing.

Here, some Atlantic herring fishing businesses are claiming that the NMFS does not have the power to regulate overfishing in the way the NMFS currently says it does.

That's it, right?

That's truly, that's all you need to know.

The NMFS says, we need to put some observers on your boats.

And these Atlantic herring boats are saying, no, we don't like that.

And now it's a case at the Supreme Court so that the conservatives can upend the administrative state.

But wait, one more fact.

We would be remiss if we didn't mention a sort of like background role in this wild theater production played by none other than Coke Industries.

That's right, everyone.

This case made its way to the Supreme Court because Coke Industries paid for it to get to the Supreme Court.

The lawyers representing those Atlantic herring fishing businesses, those lawyers are from an organization called Cause of Action.

Now, if you look up Cause of Action, that legal organization discloses no donors, discloses no employees, except if you look in court records, it does show

that those same cause of action lawyers also work for AFP, Americans for Prosperity.

That is a dark money legal organization we've talked about many times on this show.

It is funded by Coke Industries, and it has a long-storied reputation of taking on anti-regulation cases, anti-regulation causes all over this beautiful land.

So

really

Coke Industries, that's how we get to the Supreme Court in this case.

Yeah.

Party involved is technically just these like local fishermen haggling over a few bucks.

And then the actual case is really about these like massive multi-billion dollar interests trying to get what they want.

Exactly.

So let's talk about this opinion.

The central thesis of this opinion is that chevron deference, deference to federal agencies, violates the Administrative Procedure Act, the APA.

The APA is a law from 1946 passed in the wake of the New Deal that outlines some of how federal agencies operate.

Chief Justice Roberts writes the opinion.

He grabs onto what is essentially one line of the law that says, quote, the reviewing court shall decide all relevant questions of law.

According to Roberts, that means that courts cannot defer to federal agencies.

But

does it?

Does it mean that?

Right.

Is that actually what it says?

The law says that the court shall decide all relevant questions of law.

But it doesn't say like what standard should be applied or anything like that.

It seems like it's up to the court.

right right roberts is like well it doesn't say we should defer to the agency which like right it doesn't it doesn't say anything about the standard of review at all it doesn't say anything about how the courts should interpret the law it just says that the courts decide so how are you inferring that there's no deference that that's forbidden somehow very like obvious logical fallacy here and that logical fallacy is load-bearing in this opinion that is the foundational foundational piece of reasoning here.

The other bizarre thing at play, and this is sort of like implicit, is that chevron deference has been around since 1984.

And here we are 40 years later, and the court is like, oh, this law from 1946 clearly says that we can't do chevron deference.

Yeah.

Roberts is writing this opinion.

He has applied Chevron deference himself many times.

Right.

Like, are we really supposed to believe that he arrived at the conclusion that it violates the Administrative Procedure Act of 1946?

In good faith, is that something we're really supposed to believe?

Yeah.

Yeah.

I also want to add before we move on that the opinion starts off by quoting like Marbury versus Madison.

Yeah.

Doing all this like highfalutin nonsense about the role of the courts in our system.

Yeah.

And it's almost like they can't quite make up their mind about what they're doing here.

Is this a simple matter of statutory interpretation?

Or is this like a big picture case about the role of the judiciary, right?

Roberts doesn't seem to entirely know.

He's just sort of talking out of his ass before he gets going.

He's like, you know, courts.

Yeah.

They love that quote.

It is the duty and provenance of the courts to say what the law is or whatever the fuck.

And you're like,

okay.

And right.

Yeah.

And if you read like the next lines, I'm pretty sure it was like in the context, there's like a conflict of law thing.

And it's like, and sometimes two different laws say different things.

And we just have to be like, this is the one.

Like, not only is it like this ridiculous, high-falutin, load-bearing thing, but its meaning has been vastly stretched.

Right.

Yes.

The intervening 250 years.

Yeah.

Yeah.

But you're right.

It's a little bit like high on his own supply.

Like the majority opinion isn't that long.

It's 30-something pages, right?

But why is the syllabus eight pages long?

I don't know, but God bless.

Give me a fucking summary, baby.

I wish there was an eight-page syllabus for Gorsuch's concurrent.

I wanted to stab myself in the eye reading it.

It's awful.

Also, like, I have trouble giving a shit about what the founding generation thought about, like, federal agencies.

Truly, who gives a shit?

When the country was founded, the federal government consisted of a hundred slave owners and a dozen donkeys.

Yeah.

Who gives a fuck what they think about the fucking FAA or whatever?

Right.

The FDA wasn't a thing because they didn't know that you should regulate food and drugs.

Right.

So who cares what they thought?

I was just talking about this.

Like, the 12th Amendment says basically that the president and electors electors in the electoral college can't vote for two people from the same state.

And so like the president and vice president typically can't be from the same state as a result, or you risk losing that state's electoral votes.

Yeah.

Because the founders were like, oh man, everybody in the electoral college will just vote for like their buddy from their home state because

their idea of presidential elections was like 30 dudes who all knew each other and were pals

getting together and deciding the president on their own.

Like, exactly.

There's only a handful of states at the time, right?

Such a different world.

And every once in a while, I'm like reminded of that in very stark terms, where it's like, we have this long gap between when the president is elected and inaugurated because it takes a long time to travel by fucking horse cross-country.

Yeah.

Why are we still doing things like that?

Yeah.

Who gives a shit?

Right.

You get a fucking pigeon that says you won.

And you're like, nope.

I i gotta head north better start my four months journey journey

right see load up the wagons off to washington martha i'll see you in four years

i'll write you every week off to be president i will never see my children again

all right so that's what you might call the legal portion of this argument The other part of this opinion I want to discuss is what we will call the expertise question.

Yeah.

One of the main arguments for Chevron deference is that judges have no expertise in the policies that the agencies handle, while regulators at those agencies do.

That's the point of all those examples that Reed laid out at the beginning of the episode, right?

Like all of those little technical questions.

These are questions that someone with expertise might be able to answer and someone without it, probably not.

So it makes more sense to defer to an expert in aviation at the Federal Aviation Administration, for example, than it does to trust the aviation analysis of some two-bit fucking moron like John Roberts.

And yet, John Roberts is now sort of the king of aviation in this country when you think about it.

So, when your Boeing plane is falling out of the sky, just picture his face just smiling down upon you.

Roberts addresses this expertise issue by saying, Congress expects courts to handle technical statutory questions, and courts did so so without issue in agency cases before Chevron.

Now, I'm not even sure that's true, and he doesn't really support it with anything without issue.

I don't know what that's supposed to mean.

But he points out that courts will have briefs from experts at their disposal when making their decision.

And that's basically it.

That's almost as good as the experts themselves making decisions.

Well, we can listen to experts, so what's the difference?

What's the difference between having expertise and being near someone who has it when you think about it?

Right.

Yeah.

No, he's basically just like, no, we got it.

Yeah.

Don't worry.

We got you.

What, you want to talk about fish?

No, let me figure this out.

Especially funny considering like the day before,

the day before they had issued an opinion authored by Gorsuch,

where he regularly throughout the opinion confused.

uh nitrogen oxide which is a harmful poisonous pollutant with nitrous oxide which is laughing gas, a drug used to sedate people in dentist's office or by teenagers to get high for 30 seconds at keggers.

Like, this is.

Yeah.

Again, not talking about a typo, folks.

We're talking about using it like five times throughout the opinion.

And having to retract and republish the opinion after they realize it.

And then the next day being like, experts.

Yeah.

We read briefs.

Right.

Who needs an expert?

Who needs an expert?

You fucking moron.

Just

humble yourself before your betters for once in your fucking life, you fucking nerd.

For the love of God, why are we doing this, man?

Oh, God.

So there are two concurrences, each right for themselves.

Thomas writes a mercifully brief four-page concurrence, basically saying

this is right, but also Chevron's unconstitutional.

And he says it's because, one, yeah, this is the judicial power, but also two,

there's like some non-delegation stuff with like Congress possibly delegating authority to the executive that would some readings of Chevron that would be unconstitutional.

Right.

It's standard bullshit.

It's nothing new.

He cites mainly himself and his old concurrences and dissents.

It is a sort of preview of, I think, where the court will go if Congress tries to fix this legislatively.

We'll talk about that later.

Right.

Yeah.

So he's like adding a reason, right?

The Roberts majority is saying that under the APA, the Administrative Procedure Act, which is a statute, which is a law, the courts can't and shouldn't do chevron deference.

The courts have to interpret the law specifically in every single case relating to federal agencies.

Clarence Thomas is saying, yes, and chevron deference is also unconstitutional.

Right.

This is a seizing of our power.

Yeah, which is, by the way, the more

traditional, as you might call it, conservative argument against Chevron Deference.

That's what you expect from them.

Yeah, yeah.

Right.

The fact that they went with this Administrative Procedure Act argument was slightly surprising to me.

At least, like, if you had asked me a year ago, I would have said they're going to say that it's unconstitutional.

Right.

And yeah, like this is what sort of conservative law professors have been bandying about for a few years, the idea that Congress cannot constitutionally delegate its authority,

that the Constitution grants and mandates that it sort of has this fear of power and it can't just go handing that out to the executive branch.

Right.

Thomas's opinion has these sort of two interrelated constitutional arguments.

One, which is like if Congress is actually delegating this sort of statutory meaning to the executive branch, then that's an unconstitutional delegation of power from Congress to the executive.

Or conversely, if Congress hasn't delegated that, but the court is delegating its power to interpret the laws.

Right.

Or, you know, the executive is stealing its power, which is,

I think, if you don't think about it too much, you can kind of be like, oh, that makes sense.

But then it's like, no, but does it?

Like, does it make sense?

Are you unconstitutionally delegating your power to Merriam-Webster when you start by looking to the dictionary for the meaning of words?

Yeah.

Like, actually, no, that doesn't make any sense.

Like, if you think about it for like two more seconds, seconds, you're like, no, actually, not.

Like, actually, the court uses outside sources to make decisions about meaning all the time.

Like, that's what the fuck are you talking about?

Right.

Whatever.

I think it is time for a quick break.

Okay, we are back.

On to Neil Gorsuch.

Yeah.

A 33-page opinion that starts with like

pre-colonial English law and goes from there.

It's so fucking awful.

Stop it, Neil.

Yeah.

No.

Taking it even further back than Marbury v.

Madison, which is what Roberts does.

This is, yeah, this is bad stuff.

And it's like his whole thing is about stare decisis, which is the rule that courts should follow their own precedent.

And he gives this history.

is like broad history of common law judging and you know deference to precedent and all this shit to to basically be like, we don't got to follow things if we don't want.

It's essentially the takeaway.

It's so fucking, it's awful.

I mean, it's painful to read.

Is he anti-starry decisis or pro?

And just saying that the starry decisis that they should follow is like pre-colonial and colonial times and not chevron deference of the past 40 years.

He draws like three different lessons about starry decisis and when it's appropriate and when it's not.

He calls them lessons and then breaks out his conclusion into lesson one suggests starry decisis is not appropriate here.

Lesson two, such as it's awful.

I'm not going to tell you the lessons, they fucking suck.

The opinion sucks, it's boring, it's stupid.

None of his other conservative justices signed on because it sucks shit.

Right.

Uh, I hated myself and this job when I was reading it.

I resent you all for making me do this.

I like how this is one of the first times that both Rhee and I have been like, well, yeah, we didn't read this one.

I opted out hard of that concurrence.

I will tell you how far I got.

And I was talking to you all about this yesterday, but it was the metaphor he uses in his opening paragraph.

Opening paragraph where he says, today the court places a tombstone on Chevron no one can miss.

I'm sorry, but that's just not good writing.

No.

It's just not good writing.

And I know that he thinks it's so good.

Folks, when you write a metaphor,

and i'm getting pretty good at this all right but

when you write a metaphor you want to evoke something right what is a tombstone that no one can miss he's evoking that feeling when you go tombstone chopping and you're like i want something gregarious i want something loud he's describing a problem nobody has right the problem he's describing is that you're trying to figure out whether someone is dead yeah and you're just like where's the tombstone i can't find it you don't want a camouflaged tombstone.

The tombstone's not loud enough.

No wallflower tombstones.

Fuck that.

I love the idea that the reason that people get giant gaudy tombstones is that so your family can verify that you are dead.

No one can miss it.

Anyway, not good.

I stopped right there.

I stopped right there.

It's also stupid because the majority opinion says like explicitly chevron is overruled.

Yeah.

Right.

So like you're not adding anything.

Yeah, yeah, exactly.

Like, yeah, we get it.

It was pretty clear in the majority.

You know, yeah.

No, sometimes with his writing, we were talking about this too, but he swings hard with his writing.

And sometimes he will make very good contact, and sometimes he will go spinning out of the frame

like a cartoon.

You'll never see him again for the rest of the opinion.

Yeah.

Whoa, whoa, whoa, whoa, whoa.

Yeah, exactly.

Should we talk about his mom?

Oh, yeah.

Yeah.

It's worth noting that the government agency in question in Chevron, the case itself, was the EPA.

And the EPA head at the time was Gorsuch's mom, Ann Gorsuch, a Reagan appointee.

This was a case where the court deferred to the agency on adopting a rule that would essentially be more permissive to polluting industries.

This was an industry-friendly rule.

So we'll get into the history of this later, but it sort of previews how conservatives have evolved on Chevron from loving it to hating it

based on where they thought their situs of power was at the federal government at any one given time.

But yeah, Anne Gorsuch tearing down the EPA and Chevron Deference helped her, but her son also wants to tear down the EPA.

And that means getting rid of Chevron Deference 40 years later.

Exactly.

But they are sort of fighting.

This is sort of just the culmination of a fight between mom and son.

She's like, defer to me.

And he's like, no, mom.

There you go.

No.

I'm the boss now.

There is a dissent, obviously.

The three liberal justices are in dissent here.

The dissent is written by Justice Kagan, and it is as long as Neil Gorsuch's concurrence and as long as the majority opinion, about 35 pages.

And it's like she is writing a majority opinion that saves chevron deference, right?

She goes through all of the reasons why Chevron is a good rule.

It has very sound, reasonable, rigorous justification for having chevron deference in place.

And, you know, she points out like the court only recently started substituting its own judgment on federal agency regulatory power in this way, right?

The court here in overturning Chevron is giving itself decision-making authority that Congress assigned to agencies.

She gives a ton of examples of not just cases where chevron deference was employed because regulatory agencies needed to be given the power to sort of interpret ambiguous laws and decide how they were going to regulate themselves, but also examples of the court in recent years substituting its own judgment and sort of chipping away at Chevron before this final blow.

So she says, just in the past few years, there's a case where the court substituted its own judgment about climate change in the place of the EPA.

Obviously, we know about the student loan case, court substituting its own judgment on student loans in place of the Department of Education.

And for COVID workplace health policy, The court also substituted its own judgment for OSHA, the agency that's tasked and delegated authority for carrying out those policies.

So, in one fell swoop here, Kagan says the majority is really giving itself like exclusive power over every open issue in front of a federal agency, no matter how expertise-driven or policy-laden, involving any meaning of regulatory law, the court is inserting itself here.

She says that the majority is now the country's administrative czar.

Kagan says, there isn't a problem with what Chevron does, right?

Like there's no problem to be fixed here.

If it ain't broke, don't fix it kind of thing.

And it's not like a easy standard that's like lacking in rigor.

Chevron deference is this two-part test, this two-part standard, actually, and orders the court to only give deference to an administrative agency when there's silence or ambiguity on a very specific issue in the law.

And then the deference is only given to the agency if the agency's interpretation of that ambiguity is reasonable.

Right.

So it's not even like just like carte blanche, regulatory agencies can do whatever they want.

Chevron deference is a standard.

Yeah.

And I think it's worth noting, like Chevron says courts should use like all the tools of statutory interpretation available to them to resolve the ambiguity in the first instance.

Right.

It's not just like agencies decide what's up.

Right.

It's like the court looks at the law and interprets it to the best of its ability.

And to the extent there's any gray area remaining, then they will generally defer to federal agencies.

That's all it is.

Right.

I think the story of Chevron itself is a good illustration of this.

Like there's good accounts of like the actual conference where this was decided.

Some of the evidence strongly suggested that a stationary source was the entire plant.

And some of the legislative history and evidence strongly suggested that stationary source was individual things within the plant.

And they just kept going around and around and around, being like, Yeah, there's no answer.

Right.

Like, these are contradictory indicators until Stevens, who was like the youngest justice, was like, I give up.

Like, literally, like, threw his hands in the air, was like, I give up.

There's no answer.

Right.

So, I guess we just go with what the agency says.

Like, that makes sense when

the statute itself doesn't give you an answer.

And it's just resolved to like a purely policy decision.

Yeah.

To just be like, let the experts decide.

Right.

Right.

Yeah, exactly.

And like these interpretations of the laws that grant these agencies power, you know, it's not just about what like the agency can and can't do.

Like I was saying earlier, it goes to like how the agency literally operates in a concrete, detailed way, right?

Like how it uses its resources, how it implements policy and regulation.

And these are like very much traditionally, and even a conservative Supreme Court would say this, those are very much the responsibility of the political branches.

Policy implementation, regulation, right?

And so, statutory ambiguities that the majority opinion that Roberts is saying the court must decide for agencies, Kagan is saying, you know, those statutory ambiguities often entail more of a question of policy than of law.

These are very political decisions that the court is inserting itself in.

And so, the court is doing policy work here.

And to Robert's point about how the APA, the Administrative Procedure Act, just says that courts should decide all relevant questions of law, Kagan is like, that still means you can do chevron definitely.

100%.

Right?

Like deferring is a way of deciding relevant questions of law.

It just says you have to decide that.

Exactly.

It doesn't say how.

Exactly.

It's literally tautological.

Whatever.

All right.

Yeah.

So Kagan ends the dissent talking a lot about starry decisis.

She does this a lot.

She refers actually to the quote small volume of various opinions in various cases over the last few years where she is constantly begging the court to respect starry decisis and they don't again.

And so she says like, look, starry decisis is a way to enact judicial restraint.

The court is really inserting itself in a huge way into

the

mechanics of the federal government broadly.

And respecting sorry decisis, respecting precedent would have been the more restrained approach, obviously.

Yeah.

So as we've sort of touched on a couple of times here, one of the interesting little artifacts of Chevron deference is that it originates during the Reagan administration and was originally considered a conservative decision.

And that's because the Reagan EPA was functionally trying to interpret the Clean Air Act to allow polluters to skirt around EPA review.

And so at the time, conservatives applauded this because we were deferring to the Reagan-era federal government.

And then the Clinton administration came around.

You started to see some cracks where the court suddenly didn't always want to defer to federal agencies.

And there are a bunch of cases, but the big one is FDA v.

Brown and Williamson in 1999, where the court held that the FDA could not regulate cigarettes because Congress hadn't granted them the authority.

And you see it swing back under Bush.

In 2007, there's Massachusetts V EPA, which the conservatives lost.

But in that case, you had Scalia arguing about the importance of deferring to federal agencies.

But then after Obama, we saw this basically shift back for good, where conservatives started opposing chevron deference across the board.

And at first, the court didn't fully overturn it.

They started creating loopholes.

A few years ago, they essentially created the major questions doctrine out of thin air.

That doctrine says, okay, chevron deference still exists, but it doesn't apply when there's a major political issue involved.

Yeah, just if there's a big question.

Yeah.

And like Re mentioned, they use that to strike down student loan relief, environmental restrictions, et cetera, et cetera.

And now, just a few years after that, they're saying, well, actually, the major questions doctrine wasn't real.

The real law is that chevron deference doesn't exist at all.

Right.

I think the last few years of this jurisprudence really speaks to how disingenuous the court is because

they really did manifest the major questions doctrine shit from nearly thin air.

And it was always just a pretense to strike down regulations they didn't like.

And then it only took them a few years to be like, well, what do we need pretense for?

Right.

Yeah, I do think the major questions doctrine might stick around, but only for like the rare case where there is no statutory ambiguity, but it's because like the agency action is just clearly authorized and then they get to be like oh but it's a major question so even when the statute is clear and there's no ambiguity we still get to weigh in and be essentially like an extra veto point super congress yeah super congress yeah and michael you pointed this out but i think for the conservatives They realized you don't need to do this thing where you alternately oppose or support chevron deference, depending on who is in office.

You just need to seize control of the courts.

Right.

And then it doesn't matter.

Right.

In the 80s, conservatives wanted to defer to agencies because the courts writ large were still loaded with liberals, whereas Reagan was in charge.

And so let's make all those liberals defer to the Reagan administration as it guts regulations and kills administrative capacity.

Obviously, that's gone back and forth with the political valence of the presidency.

But now that they have this like stranglehold on the courts, not just the Supreme Court, but also the Fifth Circuit and the Northern District of Texas and their whole little conservative policymaking glide path that they've established, it's like, why bother?

Now that we have total control, we just need to pull as much power into the courts as possible because this is where we're strongest.

This is our source of strength.

So everything should happen here.

And that's what Loper-Bright is doing.

It's aggrandizing power.

to the judicial branch, pulling it in because conservatives have control of the judicial branch you know speaking of conservative power right 6'3 conservative super majority i did a genuine laugh out loud at one point the majority roberts in criticizing the chevron case says that chevron deference was passed by a bare quorum of six justices like you guys are passing left and right

with six justices like what are you talking about like this case is six justices yeah but the libs are present.

You're just ignoring them.

So who gives a shit?

Right.

But it's still, it's so stupid.

It's so stupid.

It was, it was unanimous.

Yeah, it's true that it was a bare quorum of six justices, but it was all six that agreed, which is just as many as agree here.

So what's the fucking difference?

It's so weird.

Stupid.

It's stupid.

So I think we've been

hinting at or sort of saying chevron is important and getting to why it is.

But I think it's good to just lay it out a little bit, which is that like

a large portion of what the federal government does is done through federal agencies.

That's because Congress doesn't have the capacity or the expertise to like

set and then constantly update emission standards, right?

Like they don't want to do that.

They don't want that responsibility.

And if they had that responsibility, we would just have emission standards that were trapped in, you know, 70s era norms and science, like just as one example.

There are like legitimately like hundreds of thousands, if not millions, of regulations promulgated every year.

It's

where the vast majority of lawmaking is done, of policymaking is done.

It's why the president is such an important office because he gets to staff all these agencies and enact a lot of policy that way.

Or she.

She, sorry.

So, Chevron, more than anything else, was a statement about

where the courts sit in relationship to this sort of policymaking structure, right?

Where Congress has legislative power, the president has executive power, but Congress creates these executive agencies that can essentially pass things with the force of law called regulations so that the law can keep up with the times.

And that statement was that the court is maybe a third wheel or I guess a fourth wheel, but regardless, a fourth wheel on a tricycle or something.

Totally unnecessary in this, that they are sort of the least important part, that this is Congress and the executive making policy.

And our job is to get out of the way for the most part and let them do it, right?

That's at its heart what Chevron is about.

And what this case at its heart is about is a big statement that like, not any more motherfuckers, we're in charge.

Like that's

that's what it's about.

Like, as they point out, they haven't been deferring for eight years, but they also haven't taken the time to overrule Chevron in that period because there's a difference between not really respecting the current status quo versus announcing, I'm the captain now.

You know, those are two different things.

And this was a big statement.

This was a big sort of coming out party for the conservatives in a lot of ways.

Not surprising after Dobbs, after the immunity decision, after they've gotten away with so much with no repercussions that they think they're in charge, right?

So this is a case that is rightfully put next to those cases, Trump immunity, the overruling of Roe v.

Wade.

This is a case about the court seizing

power.

to itself in order to enact a conservative agenda at a massive scale.

And that, I think, is frightening.

It should be frightening.

Yeah, I think that's exactly right.

It's in now a growing line of cases where the Supreme Court, we've said this on the podcast before, I think, Peter, you've said it, that like the court is saying, we're not actually one of these co-equal branches of government.

We are on top of.

the government order.

We are on top of the entire statutory scheme and constitutional scheme that defines and gives power to the other branches of government.

Right.

And so so I think that's in line with that.

One thing I wanted to point out was that this sort of massive overhaul of not just all of these laws, not just the Constitution, but a massive overhaul of the role of the Supreme Court in our government is like completely, utterly anathema to the principles of quote unquote judicial restraint

that conservatives, when it benefits them and when it helps their argument, are always touting.

This case is the opposite of judges restraining themselves on anything in a historic, like on a historic level, right?

Kagan in dissent says, quote, a rule of judicial humility gives way here to a rule of judicial hubris, which I think is exactly right.

Yeah, you know, big picture, the way that conservatives have always presented this is like this is a judicial check on runaway agency power.

Federal agencies are run by unelected bureaucrats.

We can't be deferring to them because they're just using that deference to accrue too much power.

What conservatives don't admit is that this just vests that power in another unelected branch of government, the judiciary.

Right.

They're comfortable with that because the judiciary is more conservative, right?

Yeah.

They will also say, like Thomas and Gorsuch do, that this is about the constitutional separation of powers and so forth.

Congress can't just delegate its constitutional authority to federal agencies.

But if you're looking at this as like a balance and separation of powers issue, what this really is, is the judiciary, the court, inserting itself in a dialogue between Congress and the executive branch.

Congress passes a law, the executive branch interprets it.

If Congress disagrees with that interpretation, they can signal as much or they can change the law.

The court does not need to be part of that process at all.

It's like the I consent, I consent, I don't meme, but with the court instead of Jesus, right?

Like

there's a fundamental misunderstanding of what the court is built into how conservatives talk about this and the Constitution generally.

The court is positioning itself above the other two branches and saying, we will dictate the scope of your power.

But the court is not above the other two branches.

It is one of three.

If it is left to define the contours of its own power constantly, it will accrue it at the expense of the other branches.

And so the fundamental irony of this case is that the conservatives want you to believe that the core issue here is federal agencies accruing too much power when the actual core issue is the court itself is accruing too much much power that's right and there's something extremely rich about the unelected bureaucrats line like re said this is anathema to judicial restraint it's also anathema to democratic self-rule right like

if the president is allowing industry to run wilds if their epa isn't doing shit and you care about climate you can just vote for a different president who will be more climate friendly.

Yeah.

You can't vote for a different Supreme Court.

Yeah.

You can't vote them out.

Like, that's just not

something you can do.

The only way to handle that is by getting control of both houses of Congress and the presidency and restructuring the court.

Like it's a much bigger lift to change policy that way than it is to just change who runs the agencies and change policy that way.

So

fuck these guys.

There are

There are a lot of responses Democrats should be considering right now.

Josh Chaffetz, professor at Georgetown, very sharp guy.

Actually, just by the time this comes out, we'll have just given a talk to Congress about this outlining some of their responses.

He makes a bunch of interesting points.

One of them that this is a statutory decision, which means Congress has the power to both append to any individual agency statute, essentially a chevron clause saying they are delegating to the agency the authority to interpret ambiguities,

or to just pass one general, essentially chevron statute that applies to all agencies.

Of course, as Gorzich and Thomas are previewing, such clauses or statutes might come under further fire from conservatives.

I wouldn't be surprised.

They're not going to take a challenge to their power lightly, which is why more fundamental reforms like expanding the court and packing it with non-crazy assholes should be front and center under President Kamala Harris' first term priorities.

Chaffetz also mentions that this will necessarily devolve more policymaking responsibility to Congress.

And so Congress needs to build out its policymaking capacity, more and better staffers, maybe permanent experts on the subcommittees, essentially trying to rebuild the infrastructure that currently exists within agencies within Congress instead.

That's obviously a big lift that would take many years.

Given the nature of the talk and the audience, that makes sense.

But I think another way Congress could go would also be to, since this is also devolving a lot of authority to courts, to expand the lower courts.

There are currently 11 geographic circuits, first through 11th circuits, and then the DC Circuit Court of Appeals, and then the Federal Circuit Court of Appeals.

The Federal Circuit mainly handles patent cases and is staffed with judges who have very specific patent law expertise and tend to hire clerks with lots of engineering and such backgrounds so that they can handle complicated patent issues.

Congress could create another circuit that is an administrative law circuit, create a bunch of district courts or extra district courts within the current existing structures to increase judicial capacity for handling administrative law cases, and then have an administrative law, second federal circuit, administrative circuit, whatever you want to call it, that will be staffed with judges with expertise in

all sorts of areas of administrative law and policy.

That could make sense.

It would be a way to simultaneously handle what will certainly be a large increase in the number of judicial challenges to regulations that's coming up while also diluting the power of conservatives in the 5th and 11th circuits to wreak havoc on the administrative state.

So.

President Kamala, DM me on Blue Sky.

I got ideas.

Yeah, I got a solution too.

It's called John Roberts.

Square up, buddy.

You think you're so fucking tough?

You think you're so smart?

Joe Biden, you have immunity.

The a legend.

Get creative.

Joe Biden, you are immune from prosecution.

It is time for you to citizens arrest John Roberts.

That's right.

There you go.

There you go.

That is precisely what I meant.

Imagine how long it would take him to read Miranda Wrights.

Anyway, we obviously did not discuss the fact that Kamala is the presumptive nominee, and that's because we've known all along.

We were just waiting for you to find out.

That's right.

Knew it in my heart, baby.

We are taking next week off, but then we are coming back at you with Grants Pass v.

Johnson.

Another case from just this term about the rights of homeless people or lack thereof.

Right.

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It's too bad we can't make more aggressive jokes nowadays with potentially a fascist government coming because I wanted so badly to make the obvious joke about Gorsuch, which was like, You want to learn the difference between nitroside?