From Justice to Authority
The past week’s news cycle has been dominated by one topic: President Biden’s age and his disappointing debate performance. This has been the focal point for the media, the subject of your social media conversations, and the source of countless memes. I am sure many of you got swept up in these discussions. This is the easier part. Because what catches our short attention span are laugh-worthy jokes on an incoherent Biden and his rambling-lying opponent.
However, you know what’s more challenging? It is to take the time to understand the deeper implications of other critical events that occurred last week — events that could have significant, long-lasting impacts on our society. These issues, if examined closely, could reveal potential threats to the future of our democracy. These events are not easily meme-able and won’t make you laugh in 2 seconds.
Presidential elections and the election year in general are often portrayed as a contest between two individuals, reducing the complexity of American electoral politics to a mere personality competition. This oversimplified view leads us to repeat the same mistakes over and over. It’s crucial to look beyond the surface and consider the broader consequences of our political landscape — especially elections.
Let’s begin with one of the most deceitful and dishonest power grabs that occurred last week.
For that I have to set the context and explain the Chevron deference doctrine. Prior to last week, this doctrine required that judicial deference be given to administrative interpretations made by the agency responsible for administering the statute in question. This meant that interpretations by agencies not in charge of the relevant statute did not receive any judicial deference.
Chevron was one of the most important principles in administrative law for 40 years. This was coined after a landmark 1984 case — Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Chevron deference refers to the doctrine of judicial deference given to administrative actions. In the landmark case Chevron, the Supreme Court established a legal test to determine when the court should defer to an agency’s interpretation. The Court held that judicial deference is appropriate when the agency’s interpretation is not unreasonable, provided that Congress has not directly addressed the specific issue in question. In essence, the Supreme Court acknowledged in 1984 that it is often better to rely on the expertise of executive agencies for interpreting and enforcing legislation passed by Congress.
Sounds reasonable, right?
On June 28, 2024, the U.S. Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo stating:
“The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.”
In other words, the court has given itself nearly unlimited power over the administrative state and its regulatory agencies. Outrageous. And chilling if you start imagining the plethora of lawsuits that will come to the court from its next term and the consequences of 9 men and women playing experts of environmental protection to women’s health to pharmaceutical pollution to airline fuel emissions and so on, all at the same time.
Take this as an example:
In a somewhat related case (see below Ohio v EPA), where the Court blocked EPA’s air pollution rule this past week and allowed the states’ challenge proceed through the courts, Justice Neil Gorsuch authored the majority opinion. In setting the context for the decision, Gorsuch, the newly crowned environmental pollution expert noted that the EPA “set as its target the reduction of the emissions of one ozone precursor in particular: nitrous oxide.” He explained that the agency “sought to impose nitrous oxide emissions control measures that ‘maximized cost-effectiveness.”
Nitrous oxide, commonly known as laughing gas, is a colorless, odorless gas used for sedation and pain relief, often administered by dentists. It is also a greenhouse gas and ozone precursor generated by industrial activity. However, Gorsuch presumably intended to refer to nitrogen oxides, the broader category of nitrogen-oxygen compounds that the EPA aims to regulate through the Good Neighbor Plan. In total, Gorsuch mistakenly referred to nitrous oxide instead of nitrogen oxides five times in his decision, an error that is certainly no laughing matter.
The EPA experts at the SCOTUS have since corrected the opinion after initially wondering, after all, what’s the difference between Nitrous Oxide and Nitrogen Oxide?
Now, if one is not a lawyer, like me, this sounds terrible, but mainly in a technical sense. Right? I mean there are regulatory agencies like the EPA and SEC who frequently issue complex but crucial rules. So, one could argue it makes sense that there should be a final authority on whether and how to enforce those rules. However, given that we as a country, have already made the catastrophic decision to allow the Supreme Court to decide who gets to be president, determine which presidents are above the law, dictate what women can be forced to do with their bodies, and criminalize poverty and homelessness, it might not seem like a significant leap to also let the Court decide how much lead can be in our drinking water or which predatory lenders can sell mortgages.
Here is the catch.
The US Constitution, inarguably flawed though it is, has already answered the question of who gets to decide how to enforce our laws. The Constitution says, quite clearly, that Congress passes laws and the president enforces them. The Supreme Court, constitutionally speaking, has no role in determining whether Congress was right to pass the law, or if the executive branch is right to enforce it, or how presidents should use the authority granted to them by Congress. So, for instance, if Congress passes a Clean Air Act (which it did in in 1963) and the president creates an executive agency to enforce it (which President Richard Nixon did in 1970), then it’s really not up to the Supreme Court to say, “Well, actually, ‘clean air’ doesn’t mean what the EPA thinks it means. And we know better!!”
To put it mildly, for an unelected panel of rogue judges with an activist agenda to come in, quite irrationally, above these agencies run by experts, and tell them how the president is allowed to enforce laws is a perversion of the constitutional order and separation of powers — and a repudiation of democracy itself.
But undermining democracy to expand its own power is exactly what the Supreme Court did today in its ruling in Loper Bright Enterprises v. Raimondo, which overturned Chevron. In a 6–3 decision split along party lines, Chief Justice John Roberts ruled that the courts — and, more specifically, his court and those who have influenced its justices — are the sole arbiters of which laws can be enforced and how they should be enforced. Roberts asserted that courts, and only courts, have the authority to interpret congressional intent and impose those interpretations on society. He wrote that “agencies have no special competence in resolving statutory ambiguities. Courts do.”
This ruling represents a blatant power grab that places the court above the literal experts appointed by the president, the one elected official we all vote for. Who do you think has a “special competence” in interpreting what “Clean” means in the context of the “Clean Water” or “Clean Air” Act — experts at the EPA or justices on Harlan Crow’s yacht? Who do you think is better equipped to determine what “safe” working conditions require — experts at the OSHA (Occupational Safety and Health Administration) or justices who have never worked a day in an outdoor job? Who do you think is more qualified to interpret what “equality” means under the Civil Rights Act for women in the workplace — experts at the Equal Employment Opportunity Commission or justices who have been accused of attempted rape?
Even if you somehow believe that judges are best positioned to determine how to enforce laws passed by Congress, who gave them that power? Not the Constitution. When Congress and the president discuss how to do the work of the people, and the Supreme Court intervenes, the official constitutional response should be, “I don’t remember asking you anything.”
In addition to the Chevron ruling, there were three additional rulings this past week from the SCOTUS that gutted authority of all federal agencies.
- Corner Post v Federal Reserve : A SCOTUS majority decided that anybody can sue a federal agency and over anything without statute of limitations. Of course, I am skipping the fine print and the nuances here. This will open up the floodgates at the lower courts because now anyone can sue any federal agency for anything that happened anytime.
- SEC v Jarkesy: A SCOTUS majority ruled that a federal agency (SEC in this case) can’t decide whether regulations have been violated (to be specific, equities fraud) —and this must be adjudicated only in the courts. Again, I am skipping fine print here but this is another instance of sheer power grab as noted by Sotomayor in her dissenting opinion.
- Ohio v EPA: The power of federal regulators (EPA in this case speficially) was further diminished by the Court’s decision , destroying the agency’s ability to enforce “good neighbor” policies that has been helping control air pollution blowing from a state that generates the ill wind, into a cleaner neighboring state. By gutting that power, every federal agency is now hamstrung in trying to regulate one state’s stances on public safety versus another’s.
Despite the actual structure of the Constitution and its amendments, the Supreme Court has consistently fought to exceed its constitutional limits. Its ruling in Loper Bright is just the latest and most brazen move to establish itself as the ultimate authority in the nation. The appropriate historical context for this ruling is not the 1984 Chevron decision but the 1803 Marbury v. Madison case. It was then, when the country was still young, that the Supreme Court declared itself the sole interpreter of the Constitution. The word unconstitutional appears nowhere in the Constitution, and the power to decide what is or is not constitutional was NOT given to the Court by the Constitution or any amendments. The Court decided for itself that it had the power to revoke acts of Congress and declare presidential actions unconstitutional, and the elected branches accepted it.
This remains perplexing. The Court has no enforcement power of its own, so there’s no inherent reason for either the president or Congress to defer to its demands, other than by convention and tradition. Typically, the Court issues a ruling, and the elected branches are expected to comply. Sometimes, presidents have ignored the Court. Other times, the legislature has ignored the Court or delayed implementing its rulings . But most of the time, the elected branches comply with the Court, even though nobody elected the Court, and the Constitution doesn’t grant it the power to make the rules.
Occasionally, the Supreme Court seizes as much power as it can and dares anyone to stop it. This happened in Marbury v. Madison and again in 2000 after the Bush v. Gore ruling. In that case, the Supreme Court picked the president instead of letting Florida recount its votes. As in Marbury, the officials constitutionally empowered by the people allowed the Court to have its way. Bill Clinton, the actual president at the time, accepted that the Court could decide which votes were counted. Jeb Bush, the governor of Florida, accepted that the Supreme Court could choose his brother for president. George W. Bush accepted that the Court could install him as president. And Al Gore conceded defeat to the Supreme Court.
Twenty-four years later, the ruling in Loper Bright effectively completes the suite of powers the Supreme Court has given itself to dominate everyone else. The Court can now veto acts of Congress as unconstitutional, decide who gets to be president, and determine what the president can do while in office.
I don’t believe the Court would have jumped from selecting the president to giving complete immunity to a selected president, assuming the presidency’s constitutional powers, if the conservative justices weren’t confident that the people were too weak to stop them. But the conservatives were confident they could get away with today’s ruling because they already got away with a different case two years ago: Dobbs v. Jackson Women’s Health Organization. Dobbs is critical because it involved the Court taking away a popular, fundamental right for the first time in American history. No other case, not Marbury v. Madison, not Bush v. Gore, involved unelected, lifetime appointees revoking a right previously enjoyed by the American people.
And what happened to the Supreme Court after Dobbs? Nothing. Sure, many people were angry and they remain angry. And yes, some political candidates have faced electoral consequences for the Court’s extremist ruling. But neither the people nor their elected representatives have done anything to stop the Court, reform it, or reduce its power. The Court’s “approval rating” has dropped, but its budget and power remain unchanged. Not one justice has been brought before Congress to be questioned about the Dobbs ruling. The media has also failed to hold the Court accountable for its actions. Barricades went up around the Court in 2022 because it anticipated a reaction to its revocation of reproductive rights, but no significant reaction occurred. Today, there was no security presence as the Court blithely gave itself ultimate authority over all laws and regulations. The Court knows the people are too distracted to protest its rulings.
After this ruling, to call ourselves a “democracy” is a joke. We are not a democracy. We are a nation that makes suggestions to our nine rulers on the Supreme Court, but those rulers decide which suggestions to accept and which to ignore. This is the opposite of the structure outlined in the Constitution, where the people, through their elected representatives, make the rules while the unelected Court addresses conflicts between the two elected branches or between federal and state officials.
I wish I could say, “We just have to vote for the right candidates in the next election, and everything will be fixed.” But this isn’t a fairy tale.
The fundamental question I ask is, do we actually deserve democracy? It sure looks like we haven’t earned it. Even if we did, we sure haven’t fought to protect it, and what little we inherited from the civil rights generation we’ve squandered on presidential debates (what a farcical tradition this is) and candidates we’d like to have a beer with. The Supreme Court dominates our elected branches because our political leaders lack the strength to do otherwise. We deserve no better than the yoke the Court has fashioned for us because we are the ones putting it on.
The only way to restore the rights the Supreme Court has taken away or the power the Constitution gives to the people is by reforming the Supreme Court and adding justices who don’t see themselves as kings. Court expansion is the only solution. But to expand the Court, that is to have a remote chance at that, we must elect Democrats, even if many of whom oppose court expansion. Then we must push those Democrats to eliminate the filibuster, which many don’t want to do. Then we must get Democrats to use their power. Then we must ensure the Democratic president appoints the right justices. And we must do all this despite opposition from the Republican Party, the Christian right, the fossil fuel industry, the financial services industry, your Fox News-watching uncles and friends, the pillow guy, Kid Rock, and Ice Cube.
That’s probably not going to happen. And the Supreme Court knows it. They’re counting on it. They’re about to go on a summer vacation, leaving us to our reality-television show democracy where the viewers vote, but the producers pick the winners. When they return in the fall, enriched by the gratuities they’ve declared legal for themselves, they’ll let us know who’s allowed to be president again — and then continue taking away more of our rights.
And with another crucial ruling today (on July 1, 2024), where the Supreme Court ruled that presidents are entitled to “absolute immunity” from criminal prosecution for official acts, I guess, if Trump comes back to power in 2025, Project 2025 will be set in motion (see video below) and the conservative justices can then send Ginni Thomas and Martha-Ann Alito to ask Trump to assassinate anyone who questions the legitimacy of the Supreme Court. While standing in the middle of 5th Avenue, preferably.
All done officially, of course.
Happy Independence Day!!
