Will Confirming Judge Barrett be the Death of Chevron Deference?
This post was originally published on the Union of Concerned Scientists' blog. Reprinted with permission.
For many of us, the prospect of a Supreme Court with Judge Amy Coney Barrett giving conservatives a solid 6-3 supermajority is nightmare fuel. The consequences extend beyond hot-button social issues, such as women's reproductive rights or individual access to affordable health care. If confirmed, Barrett would likely spur the aggressive pro-business agenda that the Court has pursued under the auspices of Chief Justice John Roberts.
A key item on that agenda is overturning something called Chevron deference, which some business groups have made a top priority in their broader campaign to bring about, as former White House Chief Strategist Steve Bannon put it, the "deconstruction of the administrative state." In other words, changing this key doctrine would undermine the ability of Executive branch agencies to regulate on a huge range of public health, safety and environmental protection issues.
Chevron deference springs from a 1984 Supreme Court case called Chevron v. NRDC, which involved a legal challenge against a Clean Air Act rule issued by the U.S. Environmental Protection Agency (EPA). Specifically, the lawsuit claimed that the rule was based on an incorrect …
This is the second part of a two-post set. Read the first post here.
In yesterday's post, I discussed the essentially undemocratic ways that conservatives have come to the brink of a 6-3 majority on the Supreme Court and examined one significant implication for regulatory policy: the likely effect on the Court's view on Chevron deference. In this second post, I explore several other ways the Court could undermine the essential democratic character of the regulatory system.
Nondelegation. Progressives dodged a big bullet in 2019 when the Supreme Court handed down its decision in Gundy v. United States. In the case, conservatives sought to resuscitate a long-dormant doctrine known as nondelegation, which generally prohibits Congress from transferring its legislative authority to another branch, but again fell one vote short of doing so. Similar to Chevron deference, conservatives believe that the federal courts’ failure to enforce a more …
This is the first part of a two-post set. The second post is available here.
Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court.
He’s rightfully angry about the situation – as should we all be – but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse. That’s because it's likely that Barrett will be a reliable vote in support of advancing the conservatives’ dream of stripping the U.S. regulatory system of its essential democratic features, transforming it into yet another vacuum cleaner with which the nation’s …
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