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It is easy to demean the administrative state. “Unelected bureaucrats shouldn’t be making policy,” is a popular refrain. But, it turns out, those unelected bureaucrats often have specialized knowledge and decades of experience that inform rules for things as varied as air quality, fishing quotas, nutritional standards, drug safety and much more.
No matter, the conservative majority of the Supreme Court ruled last week. Rather than agency experts, the court decided that judges — who are trained in law, not science — should determine what Congress means when it directs agencies to take actions without specifying every technical detail.
In this case, a coalition of commercial fishermen challenged the National Marine Fisheries Service’s practice of charging fishermen for monitors to ensure their compliance with federal fisheries laws. The fisherman challenged the practice, arguing that the law did not specify who should pay for the monitors.
The court’s 6-3 decision in favor of the fishermen overturned the so-called Chevron doctrine, which comes from a 1984 Supreme Court decision that gave federal agencies the power to make rules and formulate policies “to fill any gap left, implicitly or explicitly, by Congress.” In other words, if Congress passed laws to reduce air pollution or to ensure the safety of automobiles and the technical details weren’t entirely clear, it was up to federal agencies to write the specific rules and policies to meet Congress’ intent.
In reversing the Chevron doctrine, the court’s majority opinion, written by Chief Justice John Roberts said: “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
While it may be true that courts do have expertise in resolving ambiguities and conflicts of law, to say that agencies have no special competence, especially when it comes to highly technical details, has the potential to undermine thousands of federal rules. And it is just plain wrong.
Which was demonstrated by another Supreme Court decision that was issued last Thursday. That decision, written by Justice Neil Gorsuch, repeatedly confused nitrous oxide (a sedative commonly known as laughing gas) with nitrogen oxides, which are pollutants. Still, the court insisted in this case that the Environmental Protection Agency wasn’t qualified to set limits on ozone pollution.
The hubris and fallacy of this conclusion was magnified the next day when the court’s conservative majority made a similar conclusion and applied it to all federal agencies.
“The Supreme Court decision … is a disaster of scope that is difficult to describe because of its width and depth,” Forbes columnist Erik Sherman wrote last week about the broader case that overturned the 40-year-old Chevron doctrine. “It will affect everyone and everything, including consumers, corporations, the environment, and the rule of law.”
For one, the ruling opens the door to challenges of all sorts of federal regulations. Federal courts are likely to be overwhelmed by the litigation, while Americans may be left less safe and our environment more at risk.
While many critics of the decision see it as a win for corporations, the uncertainty that may be unleashed could also harm the economy. Although businesses often chafe at new regulations, unpredictability is even worse for companies, Sherman wrote. And, he warns, the costs of this uncertainty and legal fees will land on consumers.
When Roberts was confirmed to the Supreme Court in 2005, he compared the job of a justice to that of an umpire — to call balls and strikes. With this ruling, Roberts and the court’s majority have abandoned the umpire model and chosen to instead rewrite the rules of the game.
