The Supreme Court's major end-of-term rulings don't augur the *demise* of administrative agencies, but they *do* throw open the floodgates to new challenges even to long-settled agency actions
I truly believe that they issued the opinion in Loper Bright because Relentless is just a little too on the nose. If, for the next 45 years, we referenced Relentless as often as we've been referring to Chevron, it would be a reminder of how absurd the decision is. Because the chaos and uncertainty are going to feel relentless.
LB was argued by Paul Clement, a top drawer inner circle SCOTUS super lawyer whose prestige and billings depend on attaching their names to famous decisions. The justices know this, one John Roberts on particular, and are not above tossing some good stuff to their pals. Just a hypothesis.
Thanks for the excellent explainer, Steve! Lisa Needham did a write-up over at the Public Notice Substack of the cases that have already been decided as a result of the Court’s latest rulings and some of the cases that have already entered the system as a result. Shocking/not shocking that multiple judges were able to get them out so quickly based on decisions on which the ink was barely dry. https://www.publicnotice.co/p/chevron-ruling-fallout-regulatory-state-demise
Great summary of the cases. I suggest that everyone may also want to read: The destruction of the regulatory state is already happening: The post-Chevron world is here, By Lisa Needham, July 8, 2024. https://tinyurl.com/2j3xfc7j Substack
This is a look at current cases and how they're being decided after Chevron was overturned. It's scary. Yes, some of these decisions may not stand on appeal, but this will increase the cost to taxpayers, cause chaos, and has the potential to swamp the courts, or at least some of the courts (judge shopping). Keep in mind, that the conservative SC Justices were vetted, selected, encouraged, lobbied and supported by the Heritage Foundation. The Heritage Foundation published Project 2025 and these decisions (going back to Citizens United and including Dobbs) are in keeping with Project 2025.
I live in St Louis County (large Blue dot in Red state). AG Bailey is following the blueprint of former AGs Schmitt and Hawley who also filed pro-Trump lawsuits and then ran for, and were elected to, the Senate. Bailey was appointed, not elected, when Schmitt was elected to the Senate. Unfortunately, MO taxpayers have to pay for this nonsense. Hawley was hit with a $250,000 fine for violating state sunset laws. This too will be paid by taxpayers.
For obviously frivolous suits between states, do you think it would be better for the Court to (a) decline to hear the case, or (b) take it, immediately dismiss it as frivolous, and perhaps invite briefing on sanctions?
Perhaps it's surprising, but even the airlines--hardly a big fan of government regulation and having to deal with the worst bureaucracy in the federal government (the FAA)--are concerned about the uncertainty brought about by these latest decisions. They like to know that when a regulation is issued (or repealed), it is likely to stay in force, and they can make their massive investments in new aircraft or new routes or new services without worrying that it will be arbitrarily reversed at some point in the near future.
So maybe the airlines and other industries with even more powerful lobbies like Big Pharma, also concerned about uncertainty, can lobby both parties in Congress to fix these problems.
I would also like to add WRT Corner Post: why isn't it the responsibility of a person going into business or taking a new job to find out what the regulatory environment is before jumping in? How do I get away with saying, "I didn't know about that 50-year-old regulation but I'm harmed and I want it reversed." It defies all logic.
Question: do these decisions also apply to Department of Defense regulations? That could be a big worry for the powerful military contractors.
For Corner Post going the other way would have lead to absurd results as well. An agency could simply issue final actions which covered technology still under development or which otherwise wouldn't injury some class of parties for at least 6 years and it would be permanently insulated from challenge no matter how illegal. Seems reasonable to require congress at least state that intention clearly.
And at least as far as Loper Bright goes, congress could still pass a law making explicit the supposed implicit delegation. And while I have qualms about the retrospective application the prospective application feels unproblematic -- congress just adds a clause expressing the scope of deference it wants.
It would be a deciscion holding that such a law violated the non-delegation doctrine that would truly limit the ability of Congress to govern.
But yah, there are differences in views about how government should work and conservative justices end up reading in their values just like liberal ones (whatever anyone might claim). If we want different judicial values we need to elect different presidents.
The refusal to hear an appeal of LWOP for minors sits comfortably with John Roberts's previous hostility to both habeas corpus and Miranda (VegavTekoh). The Framers screwed us by not including impeachment in ArticleIII. ... Overall, according to HeatherCoxRichardson, the upward transfer of wealth from the 99% to the 1% (Mary Walton, etc.) over the past forty years is approximately $50T. I'm sitting here watching a 115lb server eat her third omelette because the only meal she gets all day is here in the restaurant. She has no money for food, after BidenvNebraska. And, of course, BvG&Shelby&Husted treat the minority ballot like toilet paper, a soiled thing that needs to be quickly disposed. The Roberts Robe Robbers are judicial Dementors, hollow things with no soul and no integrity, just like Harvard-lawyer Barack Obama, who told the assembled fat cats during the emergency meeting of March 2009 that they had a PR problem rather than a criminal problem. Not one WallSt criminal went to jail. The TeaParty and Chump came next, with a healthy push from CNN, the political equivalent of ESPN. At a bare mimimum, Harvard Law needs to teach a Hippocratic Oath: Please stop hurting America, Harvard. Obama, btw, our Presidential recordholder for war, two full terms, is now on his third mansion, two of them waterfront, after being broke in 2003. Treason pays well, while paving the way for further treason such as Ginni Thomas.
Too many are reading into these decisions the demise of the administrative state. We should be so lucky.
The reality is that while there will be changes at the margin, with 400 agencies, the vast majority of cases will be decided administratively and will never come before a judge.
Any time it chooses, Congress can enact agency regulations as statutes thus avoiding much of the second guessing by courts.
Judges often act largely without democratic checks, especially when there are no binding ethics rules, but Republican voters per poll data voted with the control of the courts in mind.
I truly believe that they issued the opinion in Loper Bright because Relentless is just a little too on the nose. If, for the next 45 years, we referenced Relentless as often as we've been referring to Chevron, it would be a reminder of how absurd the decision is. Because the chaos and uncertainty are going to feel relentless.
LB was argued by Paul Clement, a top drawer inner circle SCOTUS super lawyer whose prestige and billings depend on attaching their names to famous decisions. The justices know this, one John Roberts on particular, and are not above tossing some good stuff to their pals. Just a hypothesis.
Thanks for the excellent explainer, Steve! Lisa Needham did a write-up over at the Public Notice Substack of the cases that have already been decided as a result of the Court’s latest rulings and some of the cases that have already entered the system as a result. Shocking/not shocking that multiple judges were able to get them out so quickly based on decisions on which the ink was barely dry. https://www.publicnotice.co/p/chevron-ruling-fallout-regulatory-state-demise
Great summary of the cases. I suggest that everyone may also want to read: The destruction of the regulatory state is already happening: The post-Chevron world is here, By Lisa Needham, July 8, 2024. https://tinyurl.com/2j3xfc7j Substack
This is a look at current cases and how they're being decided after Chevron was overturned. It's scary. Yes, some of these decisions may not stand on appeal, but this will increase the cost to taxpayers, cause chaos, and has the potential to swamp the courts, or at least some of the courts (judge shopping). Keep in mind, that the conservative SC Justices were vetted, selected, encouraged, lobbied and supported by the Heritage Foundation. The Heritage Foundation published Project 2025 and these decisions (going back to Citizens United and including Dobbs) are in keeping with Project 2025.
I live in St Louis County (large Blue dot in Red state). AG Bailey is following the blueprint of former AGs Schmitt and Hawley who also filed pro-Trump lawsuits and then ran for, and were elected to, the Senate. Bailey was appointed, not elected, when Schmitt was elected to the Senate. Unfortunately, MO taxpayers have to pay for this nonsense. Hawley was hit with a $250,000 fine for violating state sunset laws. This too will be paid by taxpayers.
For obviously frivolous suits between states, do you think it would be better for the Court to (a) decline to hear the case, or (b) take it, immediately dismiss it as frivolous, and perhaps invite briefing on sanctions?
Perhaps it's surprising, but even the airlines--hardly a big fan of government regulation and having to deal with the worst bureaucracy in the federal government (the FAA)--are concerned about the uncertainty brought about by these latest decisions. They like to know that when a regulation is issued (or repealed), it is likely to stay in force, and they can make their massive investments in new aircraft or new routes or new services without worrying that it will be arbitrarily reversed at some point in the near future.
So maybe the airlines and other industries with even more powerful lobbies like Big Pharma, also concerned about uncertainty, can lobby both parties in Congress to fix these problems.
I would also like to add WRT Corner Post: why isn't it the responsibility of a person going into business or taking a new job to find out what the regulatory environment is before jumping in? How do I get away with saying, "I didn't know about that 50-year-old regulation but I'm harmed and I want it reversed." It defies all logic.
Question: do these decisions also apply to Department of Defense regulations? That could be a big worry for the powerful military contractors.
There are more than 4 million hits (combined) on google for "regulatory certainty" and "regulatory uncertainty."
This is not a new concept.
And this concern has long come from the business community, about how they need regulatory certainty.
Was that always just 100% a bullish argument against new regulation, or was there actually any kernel of truth to it?
“at which point, stare decisis might do some work”. YukYuk! You have such a droll sense of humor, Prof V.
For Corner Post going the other way would have lead to absurd results as well. An agency could simply issue final actions which covered technology still under development or which otherwise wouldn't injury some class of parties for at least 6 years and it would be permanently insulated from challenge no matter how illegal. Seems reasonable to require congress at least state that intention clearly.
And at least as far as Loper Bright goes, congress could still pass a law making explicit the supposed implicit delegation. And while I have qualms about the retrospective application the prospective application feels unproblematic -- congress just adds a clause expressing the scope of deference it wants.
It would be a deciscion holding that such a law violated the non-delegation doctrine that would truly limit the ability of Congress to govern.
But yah, there are differences in views about how government should work and conservative justices end up reading in their values just like liberal ones (whatever anyone might claim). If we want different judicial values we need to elect different presidents.
The refusal to hear an appeal of LWOP for minors sits comfortably with John Roberts's previous hostility to both habeas corpus and Miranda (VegavTekoh). The Framers screwed us by not including impeachment in ArticleIII. ... Overall, according to HeatherCoxRichardson, the upward transfer of wealth from the 99% to the 1% (Mary Walton, etc.) over the past forty years is approximately $50T. I'm sitting here watching a 115lb server eat her third omelette because the only meal she gets all day is here in the restaurant. She has no money for food, after BidenvNebraska. And, of course, BvG&Shelby&Husted treat the minority ballot like toilet paper, a soiled thing that needs to be quickly disposed. The Roberts Robe Robbers are judicial Dementors, hollow things with no soul and no integrity, just like Harvard-lawyer Barack Obama, who told the assembled fat cats during the emergency meeting of March 2009 that they had a PR problem rather than a criminal problem. Not one WallSt criminal went to jail. The TeaParty and Chump came next, with a healthy push from CNN, the political equivalent of ESPN. At a bare mimimum, Harvard Law needs to teach a Hippocratic Oath: Please stop hurting America, Harvard. Obama, btw, our Presidential recordholder for war, two full terms, is now on his third mansion, two of them waterfront, after being broke in 2003. Treason pays well, while paving the way for further treason such as Ginni Thomas.
Impeach BvG's John Roberts, our 21stC Jim Crow.
Too many are reading into these decisions the demise of the administrative state. We should be so lucky.
The reality is that while there will be changes at the margin, with 400 agencies, the vast majority of cases will be decided administratively and will never come before a judge.
Any time it chooses, Congress can enact agency regulations as statutes thus avoiding much of the second guessing by courts.
Judges often act largely without democratic checks, especially when there are no binding ethics rules, but Republican voters per poll data voted with the control of the courts in mind.