The Supreme Court term: winners and losers part two

In a major 2024 landmark decision, the Supreme Court undercut the authority of the federal administrative agencies in Loper Bright Enterprises v. Raimondo. This decision will have a direct negative impact on Island residents and visitors who rely on the expertise of government officials, and here’s why.

First, the big winner in this decision are the federal courts. Writing for five of his conservative colleagues, Chief Justice John Roberts ruled that judges, not federal bureaucrats, have the power to interpret ambiguous laws and develop regulations to enforce them. The winners were also those who have long criticized the administrative state, which consists of nearly 300 agencies in the federal government that Congress has authorized since 1789.

Second, the losers are the American people. The public relies on the professionalism and expertise of those who have devoted their professional careers to ensure the health and welfare of all Americans. Their expertise is not perfect, and they sometimes make mistakes. But to accord final authority to judges in areas of science, medicine, national intelligence, and so on may prove to be a serious blunder.

The case before the court involved the requirement by the National Marine Fisheries Service that fishermen pay for federal observers on their boats to ensure they do not overfish the waters. Two companies objected to the requirement as too costly, $700 per day. They argued that the law did not empower the service to impose the fee.

The court went further than dealing with the fisheries law. Instead, the justices overruled a 1984 decision (Chevron USA v. Natural Resources Defense Council) that authorized federal agencies to develop regulations interpreting ambiguous federal laws if those regulations were a reasonable interpretation of those laws. This was known as the Chevron deference when the government deferred to agency expertise to figure out how to enforce a federal law. Justice Antonin Scalia, one of the most conservative members of the modern court, wrote the Chevron decision, most likely because it involved a decision by the Environmental Protection Agency (the EPA) to limit how the government enforced the Clean Air Act.

No longer. As Chief Justice Roberts wrote, “courts need not and…may not defer to an agency interpretation of the law simply because a statute is ambiguous.” It is the role of judges to do so.

Justice Elena Kagan’s dissent responded to Roberts’ opinion. She gave the following example from the Food and Drug Administration (the FDA). “Under the Public Health Service Act, the Food and Drug Administration regulates biological products, including proteins. When does an alpha amino acid polymer qualify as such a ‘protein’? Must it have a specific, defined sequence of amino acids?… Agencies are staffed with experts in the field who can bring their training and knowledge to bear on open statutory questions.… I don’t know many judges who would feel confident resolving that issue.”

She was clearly baffled about the subject. She bewilderedly asked, “What even is an alpha amino acid polymer?” And then she answered her own question: “The FDA likely has scores of scientists on staff who can think intelligently about it, maybe collaborate with each other on its finer points, and arrive at a sensible answer.”

Over the past several years, conservative conspiracy theorists and politicians have criticized the so-called administrative state as being an unelected group of people who undermine the elected branches of government, namely the president and congress. No one has been more outspoken than former Donald Trump in attacking what he and his advisors call “the deep state.” As he put it last year, “Either the deep state destroys America or we destroy the deep state.” For Trump, the agencies did everything possible to ruin his presidency and if reelected, he has promised to never let it happen again.

Donald Moynihan of Georgetown University succinctly summed it up last year before the court decided the Loper Bright Enterprise decision. “American bureaucracy is often slow and cumbersome. The civil service system in particular is in need of modernization. But it is also suffused with democratic checks that limit the abuse of centralized power. This is why Mr. Trump and his supporters are so precisely targeting the administrative state, taking advantage of an antipathy toward Washington that both parties have long nurtured. If Mr. Trump has a chance to implement his various plans, expect a weaker American government, worse public services and the dismantling of limits on presidential power.”

This United States Supreme Court has now ensured that the federal agencies will now likely be less of a force in American life. And this bodes ill for those on the Island concerned about their health if the FDA and the Center for Disease Control (the CDC) are unable to act quickly when the next pandemic hits, and it will.

Can judges determine the efficacy of new drugs that may help those with severe medical issues like heart and lung problems or cancer? Can they immediately direct law enforcement if FBI agents must await a final court decision on a new law? If Congress enacts a new law on clean water or clean air, will EPA officials have to wait for trial and appellate court review before they act?

These examples barely scratch the surface. With so many agencies that now await what the judges say about a new law, these problems may be limitless.

Jack Fruchtman lives in Aquinnah is preparing final edits of the fourth edition of his book, “The Supreme Court and Constitutional Law.”