On June 28, 2024, the Supreme Court handed down a decision that amounts to its greatest power grab since 1803, when the Marshall Court established judicial review, according to Ellie Mystal of the Nation Magazine. As many have observed, the current Supreme Court has time and time again proven itself to be disruptive and reckless without precedence, as reported in Newsweek. Decisions like Dobbs v. Jackson and Students for Fair Admissions overturned long established precedents, in those cases abortion rights and affirmative action.

June 28th saw a new flurry of incredibly problematic decisions. In the first instance, the Court continued its pattern of overturning landmark precedents by striking down Chevron Deference. In its second, the Court granted former president Trump expansive immunity, a decision described as “breathtaking” in Newsweek and “has dangerous implications for our nation’s future,” according to former CIA Director John Brennan.

The focus of this piece will be the first decision, which even more than Dobbs or Students for Fair Admissions, will have sweeping consequences for every single person in this country.  As reported in the Washington Post on June 28th, the ruling is widely expected to fundamentally alter the function of government by drastically limiting the ability of federal agencies to carry out their regulatory responsibilities to protect the health and welfare of the public.

Chevron Deference, or the Chevron Doctrine, in essence gives federal agencies the authority to interpret ambiguous legislation and implement them accordingly. For example, Congress may pass legislation with the intent to reduce air pollution while not going into the specifics of what exactly is to be considered a pollutant or how exactly to measure air toxicity. Experts in the Environmental Protection Agency then take those laws and implement them knowing that ozone, particulate matter, carbon monoxide, lead, sulfur dioxide, and nitrogen dioxide should be designated as the criteria air pollutants. The logic here is that ambiguity is expected in legislation because Congress is not made up of experts on environmental science or industrial economics or medicine. Still, Congress is tasked with creating policy on climate action, economic development, worker protections, health care and so much more. It is impossible to expect that senators and representatives would be experts on every issue that may come before them. Similarly, it’s inconceivable to expect judges to  be experts on every issue raised in cases they hear. Governing still works because the job of implementing how best to carry out the will of Congress lies not with Congress itself nor with the judiciary, but with federal agencies.

This practice arose out of the 1984 Supreme Court case Chevron vs. Natural Resources Defense Council. Since then, 70 Supreme Court decisions and 17,000 lower court decisions have relied on Chevron Deference, making it one of the most cited precedents in American law. It is the “cornerstone of administrative law” and foundational to the way the government operates. But now, the case Loper Bright Enterprises v. Raimondo upended it all.

Loper Bright began in a New Jersey herring fishery. Federal law limits the amount of fish that can be caught, preventing overfishing. It further requires that a government-appointed inspector accompany the fisherman to ensure that the law is followed. The National Marine Fisheries Service (NMFS), a federal agency under the Department of Commerce, implements these laws and requires that the fishing companies pay for these inspectors (amounting to about $700 a day). However, the law in question (the Magnuson-Stevens Act) does not explicitly state that the companies have to pay for the inspectors. So, that New Jersey herring fishery, Loper Bright Enterprises, sued the Department of Commerce, led by Secretary Gina Raimondo. In a 6-3 decision, the Supreme Court sided with Loper Bright Enterprises and ended Chevron Deference entirely.

This may all sound relatively innocuous, but Jody Freeman, “founder and director of the Harvard Law School Environmental and Energy Law Program and a former Obama White House official pointed out that the end of Chevron is “connected to a much larger agenda, which is essentially to disable and dismantle federal regulation.”” Justice Elena Kagan in her dissent put it this way:

“Today, the Court flips the script: It is ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education… But evidently that was, for this Court, all too piecemeal. In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”

When Justice Kagan says that the majority gave itself “exclusive power over every open issue,” she really does mean every open issue. Suddenly decisions made across the entire government on issues from food safety to financial honesty are up for protracted and expensive litigation before an already backed up and over-burdened judiciary.

Opponents of Chevron have argued that it is the judiciary’s role to interpret the law, not the agencies’. This opposition to the power of regulatory agencies fits within the broader conservative movement against the “administrative state.” From National Federation of Independent Business v. OSHA to West Virginia v. EPA to Biden v. Nebraska, this extreme right-wing Supreme Court has over time chipped away at the executive branch’s discretionary powers. Extremists have sought to undercut not only “the power of many federal agencies to regulate not only fisheries and the environment, but also health care, finance, telecommunications and other activities.” The lawyers representing Loper Bright in this landmark case work for Americans for Prosperity, “a group funded by billionaire Charles Koch,” infamous for his generous backing of anti-regulatory causes. Far-right Christian activists are also celebrating the Court’s decision, seeing a new path to target abortion medication and transgender rights. Previously, courts rejected their suit to undo the FDA’s approval of an abortion drug because of Chevron Deference. In a sign of what a post-Chevron world might look like, the Alliance Defending Freedom (ADF), an anti-LGBTQ Christian legal advocacy hate group, has filed an amicus brief in a case criticizing the Department of Education and Department of Health and Human Services for imposing what if calls “radical gender ideology” and “forcing employers to pay for puberty blockers, cross-sex hormones and amputating healthy organs.”

The consequences extend further. Scientific American writes that the end of Chevron will “reshape the U.S. energy sector” and create hurdles for the Biden Administration’s efforts to address climate change. Now, the courts have more say in interpreting rules on “everything from [the] EPA’s latest effort to curb power plant emissions to the Federal Energy Regulatory Commission’s orders on transmission lines.” The decision could also endanger the administration’s “efforts to reduce climate-warming pollution from cars and trucks” and “the already embattled Securities and Exchange Commission’s effort to force public companies to disclose more information about their climate risks.”

For banking regulators, the ruling similarly means they can expect attacks against their work. Trade groups representing banks have sued federal bank regulators including the Consumer Financial Protection Bureau (CFPB), the Office of the Comptroller of the Currency, and the Federal Reserve over a range of rules including anti-redlining regulations. The CFPB has recently introduced rules “imposing credit card late fee limits and expanding its interpretation of anti-discrimination laws” as well as “giving buyers a right to dispute charges and demand refunds” from Buy Now, Pay Later lenders. All of this work to prevent discrimination and protect consumers is now under threat.

As Sean Donahue, a partner at Donahue, Goldberg & Herzog and an elected member of the American Law Institute, pointed out, there is a whole array of well-settled policies and the end of Chevron will create a “mansion industry of attacking” those policies. The arbiters of what happens to them will be individuals who are not “armed with decades of experience administering particular laws passed by Congress but with a wooden, formalistic and acontextual approach to reading statutory text — informed by dictionaries and the common law and Latin phrases but not the on-the-ground reality of the problems Congress seeks to address in the statutes it passes.” In Kate Shaw’s opinion piece for the New York Times, she provides a stark illustration of the costs of a lack of expertise: last “Thursday, in the case dealing with the Environmental Protection Agency — Ohio v. E.P.A. — the released version of the majority opinion made five references to ‘nitrous oxide,’ commonly referred to as laughing gas, rather than the ‘nitrogen oxide’ compounds at issue. The error was quickly fixed, but no agency official working on the regulation of this compound would have made such an error — and in many ways that is Chevron’s whole point.” This prospect of unprofessional handling of government operations by individuals under little accountability is immensely alarming.

In any workable government, the bureaucracy provides subject area expertise, a balance between independence and accountability, and continuity across administrations. It is an institution composed of non-partisan career civil servants, protected from political backlash but accountable to meritocracy and the elected executive’s appointees. They are accountable to the law, governmental norms, and the constitution – not to any given administration. This is not to say that bureaucracies are perfect — far from it, as anyone at the DMV can attest to. Bureaucracies can become unnecessarily Byzantine in complexity. However, the reality is that there always has been and always will be questions that Congress “‘either inadvertently did not resolve’ or intentionally left to be resolved.” The question then becomes: what is the most democratic and pragmatic mechanism to reach a resolution? Perversely, the Supreme Court has named itself the arbiters of truth in this matter. By the Court’s majority opinion, “agencies have no special competence in resolving statutory ambiguities. Courts do.” Is the majority opinion really referring to the Courts that mistook nitrous oxide for nitrogen oxide? The Courts that operate under the most flimsy ethical guidelines? The Courts that “have no constituency” and no “duty to respect legitimate policy choices by those who do?” I find that hard to take seriously. The other choice is the bureaucracy, possessing the qualities described above. Meanwhile, nowhere does Congress itself ever question the federal bureaucracy’s role in policy implementation, a role as old as the constitution beginning with George Washington’s three cabinet departments. Last Friday, the Supreme Court supplanted Congress’s wish. On June 28th, the Supreme Court supplanted the democratic will and took for itself immense power.

These agencies that have been mentioned in this article from the National Marine Fisheries Agency to the Office of the Comptroller of the Currency are not flashy organizations. It would be surprising if any of the readers of this article had heard about them before the overturn of Chevron. But these are the agencies behind some of the greatest civil rights victories, for example the crackdown on red lining. They are the agencies protecting your water and your air. They lower the price of insulin, protect the money you keep in banks, and keep workplaces safe. They carry out the everyday tasks of government—delivering social security, providing student loans, administering the Supplemental Nutrition Assistance Program and Medicaid. The sheer scale of what the Supreme Court’s ruling puts into question is dramatic and difficult to comprehend.

Make no mistake, everyone in this country who breathes its air, drinks its water, eats its food, receives medical care, drives cars, works, has a retirement account, watches TV, stores money in the bank, or buys products will be impacted. At this time, we all must be very concerned for the future of our government and the democracy millions have fought and died to protect.

–Alex Li