A Supreme Clip of Federal Powers
Terry H. Schwadron
July 3, 2024
Even beyond the Supreme Court decision on presidential immunity, we have been handed several rulings that may take years spell trouble ahead for federal regulation.
The 6–3 ruling on Friday significantly weakened the power of federal agencies to approve regulations and shifted the balance of power between the executive and judicial branches of government — in one sense, the opposite finding of an immunity decision allowing a president to do a lot without criminal review. The “president” acts through the executive branch in most instances.
The decision arising from two cases filed by fishermen groups could affect how we regulate environment and industrial pollution, health services and drugs, agriculture, labor, and education, among other areas.
The ruling overturned the 1984 precedent known as the Chevron principle which generally had allowed federal agencies to figure out how laws passed by Congress might apply in actual disputes that arise in everyday business that had not been addressed specifically by enabling legislation.
Instead, the court said interpretation of laws is the province of the courts, not federal agencies. And while the ruling by Chief Justice John G. Roberts Jr. said the court did not want to hear from the tens of thousands of cases that might be re-decided from the past, it was clear that there will be tons of issues filed with courts on an ongoing basis. In that respect, there is no other way to read this decision, which pit the court’s six conservatives against the three liberals, as anything but a victory for advocates of reining in the regulatory authority of the “administrative state.”
It’s yet another decision in which the court’s interpretation of what is law runs counter to precedent and hand-in-hand with political outcomes that match the political goals of those who appointed those judges.
Indeed, The Washington Post noted that “Mere hours after the Supreme Court sharply curbed the power of federal agencies, conservatives and corporate lobbyists began plotting how to harness the favorable ruling in a redoubled quest to whittle down climate, finance, health, labor and technology regulations.”
Power Over Practicality
To those of us who watch the sport of government, this is a significant rewriting of the rules and an overreach that substitutes power politics over practicalities.
It is a ruling that goes far beyond the issues raised by the two cases at its heart — whether the Commerce Department could order fishing boats to carry and pay for over-fishing inspectors — and solves exactly no practical problems.
Rather, it creates new problems.
“Chevron is overruled,” Roberts wrote in his majority opinion. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”
For the Supreme Court justices to decide that they know more about science, technology, clinical trials than experts hired by the very federal agencies tagged with understanding those industries is not only an exercise in hubris, but a guarantee that the only practical strategy for federal agencies under fire will be to withhold regulations that land them in court.
So where does it end. Can meat inspectors do their work? Weather forecasters? Reviewers of clinical drug tests? The legislation that gets passed in split Congresses routinely are enacts open-ended laws that give latitude to agencies to work out — and adjust — the details to new circumstances. In the case of the fishermen who brought the case, the law allowed the government to mandate the observers but was silent on the question of who had to pay their salaries, which the fisherman argue added roughly $700 a day to their costs. They asked the court to rule that agencies couldn’t enact such a requirement without explicit approval from Congress.
The court went way beyond what was asked. Should Donald Trump be elected in November, it will greatly expand the campaign to eliminate regulation in every business area.
Homelessness Without Solution
The court last week decided to uphold a law in Grants Pass, Ore. to ban the homeless from sleeping outside within city limits. The decision also was 6–3 to decide that such a ban did not represent unconstitutional “cruel and unusual punishment”
Instead, the issue seemed to revolve around the power of the city to issue laws affecting the homeless without a nod of any kind to what is supposed to happen to those without resources.
In her dissent, Justice Sonia Sotomayor argued that sleeping is a biological need, and that if there are no facilities, it is natural that the homeless will fall asleep outside. The majority reflected the needs of the city and not of its vulnerable population, she said.
The National Homelessness Law Center said the alternative here is that cities, states or the federal government should provide facilities for the homeless.
But here’s the thing. The majority opinion by Justice Neal Gorsuch said, “Homelessness is complex. Its causes are many.” But he said federal judges do not have any “special competence” to decide how cities should deal with this. “The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”
OK, that’s why we have federal or local agencies with expertise. The thinking is the exact opposite of the Chevron decision.
This is a court that opines, but it does not solve problems.
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