Chevron

Tomorrow, the Supreme Court will hear one of the most important cases of this term, the outcome of which could affect the fate of every federal regulation that protects the safety of workers, the security and safety of consumers and the fate of our environment  — as well as health care, food safety, nuclear energy, government benefit programs and guns.

The subject of the hearing is a concept called “Chevron Deference,” and the Chevron case that set that standard  has been one of the Supreme Court’s most cited cases for the past 40 years.

Chevron is probably the most important case that most people have never heard of.

So what is “Chevron Deference” and why is it so important?

First, two things to understand:

  • “Chevron Deference” is not about which gas station to use.
  • Main-stream Republican and business euphoria over Donald Trump’s catastrophic Supreme Court appointments had nothing to do with overturning Roe v. Wade. And everything to do with Chevron Deference.

The origin of “Chevron Deference” is the 1984 Supreme Court decision, Chevron v. Natural Resources Defense Council which looked at how much authority agencies have to issue rules based on the legislation passed by Congress — the Occupational Safety and Health Act, environmental laws and consumer protections  — and what role Congress or the courts play in determining whether agencies’ rulemaking is constitutional.

The Court concluded in the Chevron case that where the specific language in the original legislation is ambiguous or silent, a court reviewing an agency’s action should defer to the agency if its action is “reasonable” based on the original legislation.

Critics of government regulation often argue that rules are unconstitutional because they are written by unelected bureaucrats with no accountability, whereas Congressional representatives are democratically elected by the people.  But according to a unanimous decision of the Court in Chevron:

While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. (emphasis added)

In other words, agency experts may themselves be unelected, but they work for the President who is elected by, and accountable to the American people.

And we all know from painful experience, that agencies are not allowed to issue regulations without the significant input and approval of the White House and the elected President who is empowered by the Constitution to execute the laws that Congress passes.

Nor should the courts — who don’t have the expertise that federal agency experts have — be in a position of judging the technical merits of an agency regulation. If there is ambiguity, or the law didn’t spell out every detail of an agency’s authority, the court only determines whether the agency’s regulation is “reasonable,” not, for example, how much silica a worker is allowed to inhale.

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.

Without Chevron, courts (especially conservative courts with Trump appointees will more easily be able to overturn federal agency actions, even though they have no technical expertise. In other words, many fear, ditching Chevron, means more politics in the courts.

The High Cost of Herring

The specific cases under review this tomorrow are Loper Bright Enterprises v. Raimondo, and an almost identical one Relentless v. Department of Commerce, that will be argued alongside it.  In 1976, Congress  passed a law intended to protect populations of endangered fish against overfishing. The National Marine Fisheries Service (NMFS), in order to enforce the law, decided that an inspector must accompany herring boats to guard against overfishing. So far, so good. But in 2020, the NMFS issued a regulation requiring the fishing industry (boat owners) to pay $700 a day to fund the inspectors.

The boat owners argue that only Congress should have the authority to issue that requirement, not the agency, but lower courts determined that the fee was a “reasonable” way to execute the law that Congress passed.

(The fee has since been withdrawn.)

Those supporting the overturn of Chevron are not fish-loving consumers concerned about the high price of herring. Rather, they are two right-wing think-tanks that have financial ties to the right-wing billionaire Charles Koch.

Those funding the cases that could overturn or severely weaken Chevron are not fish-loving consumers concerned about the high price of herring.  Far from it.

Instead, we’re seeing here is a full frontal assault on the so-called “Administrative State” backed by two conservative groups that have financial ties to the right-wing billionaire Charles Koch. One is the Cause of Action Institute, whose mission is “to limit the power of the administrative state.”  The other is the New Civil Liberties Alliance, which aims “to protect constitutional freedoms from violations from the administrative state.”

The term “administrative state,” is a term used by conservative business interests and the right wing to describe the power that some government agencies have to write standards and regulations to enforce their own laws.

The term gained popularity shortly after the election of Donald Trump when his then-advisor Steve Bannon called for “deconstruction of the administrative state,” which he said was obstructing  American business and sovereignty.  Bannon argued that getting rid of the administrative state “would empowers ordinary people over coastal elites and international institutions.”

Sounds good —  if by “ordinary people,” you mean right-wing billionaires, conservative think tanks and the business community.

And it sounds good if you believe that the “constitutional freedoms” that need protecting are the “freedoms” to endanger workers, poison food, expose people to hazards chemicals, air and water, rip off consumers — and on and on.

You get the idea: they’re talking about freedom from any kind of government oversight or the ability of government to enforce the laws that Congress passed.

Libs Should Stop Whining

Some right-wing columnists, like conservative Washington Post columnist George Will, argue that the fate of our economy and the Constitution itself depend on the overturning of Chevron. Now, George Will is a smart guy and a good writer who occasionally pens beautiful columns about baseball.

But when it comes to politics, he visibly struggles to appear dumber than he really is.

Will argued earlier this week that all the whining about the potential demise of Chevron is overblown, calling it “foolish” that “some progressive commentators dare to claim that eliminating Chevron would  “kneecap” and “take a sledgehammer” to federal agencies.”

Eliminating Chevron would not, as excitable progressives claim, cripple the government’s power to do progressives’ favorite thing: regulate. Congress’s regulatory power would be undiminished. Congress would, however, have to be more involved in writing, and therefore accountable for, regulations. By erasing Chevron, the court would force Congress out of its lassitude, whereby it allows agencies vast discretion to interpret vague statutes that are tissues of generalities. [emphasis added]

So why is Will’s lack of concern a problem?

To begin with, this excitable progressive with more than 40 years of experience in workplace safety — including 10 at OSHA and 4 in the House of Representatives — can’t help but laugh (not so excitedly) about what the world would look like if our protections depended on Congress getting “more involved in writing” regulations.

And let’s not forget that even if a Democratic majority in the House could authorize or write an OSHA heat or workplace violence standard, it would still take 60 (presumably) Democratic votes in the Senate. Because Republicans don’t do OSHA standards. And this country will not see 60 Democrats in the Senate in my lifetime — nor likely in the lifetimes of my children.

Second, OSHA currently takes years (and sometimes decades), millions of dollars and non-stop work by the nation’s leading experts in order to issue health and safety standards. Right now, for example, OSHA is working on standards covering infectious diseases, workplace violence, heat, chemical plant safety, emergency response activities and many other issues.  Does George Will, or does anyone else really believe that there is a legislators or staff  in the entire Congress who have the necessary time, resources, economic or scientific expertise in any of these issues.

(This is a rhetorical question.  From my experience in the House of Representatives, the answer is a resounding No!)

Ending Chevron Deference will not “force Congress out of its lassitude;” it will weaponize that lassitude against workers, consumers and the environment.

And does George Will, or anyone else, actually believe that Congress, when it passed the Occupational Safety and Health Act “authorizing the Secretary of Labor to set mandatory occupational safety and health standards,” intended for the agency to go back to Congress for approval every time it intended to work on a standard to protect workers?

Does anyone actually believe that Congress, when it passed the Occupational Safety and Health Act intended for the agency to go back for Congressional approval every time it intended to issue a standard protecting workers?

Will also loves, loves, LOVES the Court’s so-called “major questions” doctrine, which the Trump Court invented to overturn OSHA’s 2021 COVID “test or vaccinate” standard and other federal rules.  The ‘major questions” doctrine states that ” If an administrative agency makes a decision with substantial economic and/or social impacts, and the decision is not based on explicit statutory authority, then the agency bears the burden of proving that its action reflects Congress’s intent.

The current court pretty much just made up the “major questions” doctrine as a way to weaken Chevron without discarding it. For who is to say what constitutes “substantial economic and/or social impact?”  I guarantee you, according to the business community and most Republican legislators, “substantial economic and/or social impact” would mean any and every OSHA, EPA, food, consumer and nuclear safety regulation — past, present and future.

Eugene Scalia: Chevron For Me, But Not For Thee

Former Trump Labor Secretary Eugene Scalia takes to the Wall St Journal to arrogantly and awkwardly argue that Chevron is dangerous — mainly because most Cabinet Officials aren’t lawyers like Gene so they don’t understand the law. Or worse, weak agency heads may choose to defy legal advice, improperly prioritize political goals or cave in to media pressure.

To “prove” his point, Scalia creates an imaginary agency head — the “decider” — who in an imaginary conversation foolishly and unethically defies the sage advice of his legal staff:

 Some rules get adopted against the advice of the lawyers—the actual interpreters.

The decider might say to his lawyers: “I hear you about legal risk. But I’m going to do what’s right. After all, it’s possible no one will sue over this rule. And if they do, I might win—you just admitted you can’t be 100% sure what the courts will say. And if I lose, then it’s on the judges. Everyone will know I did the right thing.”

But never fear, Gene is quick to assure us: “That wasn’t my method, but it happens.”

Or at least it happens to everyone else.

Because even though Scalia admits to enjoying the discretion that Chevron had given him when he was Secretary of Labor, no future Cabinet Secretary — or President — can be trusted with that kind of power.

Yes America, not all heroes wear capes. When God made Gene Scalia, she broke the mold.

One more thing Gene.  You know as well as I do that no one in the 54-year history of OSHA has ever said with a straight face that “It’s possible no one will sue over this rule.”

Because everyone knows that the Chamber of Commerce and other business interests sue OSHA every single time the agency issues a new standard. And they almost always lose. Getting rid of Chevron or weakening it, could improve their odds.

Finally, I can pretty much guarantee that there is nothing in Gene’s imaginary conversation that ever “happens” in the office of the Secretary of Labor or the Assistant Secretary for OSHA. Except maybe the line: “I’m going to do what’s right.”

So yes, George and Gene, even if we sounds “excitable,” there is no question that the demise of Chevron would, in fact, “‘kneecap’ and ‘take a sledgehammer’ to federal agencies.”

Or worse, because the outcome of these cases will take a sledgehammer not just to federal agencies, but to the lives and health of American workers. In fact, at the risk of sounding excitedly progressive, I will argue that the outcome of these cases will literally be a matter of life and death for American workers.

Unless, of course, like George Will, working people are content to get injured or die waiting for Congress to issue or authorize OSHA standards that protect workers from heat, workplace violence, chemical plant disasters and infectious diseases.

Because I can already predict that those standard will be issued sometime around the 12th of Never.

The Real Value of Trump’s Court

As we sink into the quagmire of the 2024 election season, it is becoming more and more obvious that for the business community, Trump’s ability to appoint three justices to the Supreme Court was never about abortion or overturning Roe v. Wade.

Abortion was only a pretext used to mask their real intent: liberating American business from government oversight.

And if the Supreme Court decides to overturn or significantly weaken Chevron, that goal will be achieved.

3 thoughts on “How the Supreme Court Kills Workers: The Demise of Chevron Deference”
  1. Thinking of OSHA standards promulgated over the past 50 years, is the HAZWOPER standard 1910.120 the only one that COngress ordered the agency to create and basically wrote the standard too??? IN SARA 1986. Could this be the new model and only path forward?

    1. Congress also ordered OSHA to issue the Process Safety Management standard in 1992 and the Lead in Construction standard in the 1990s. The Bloodborne Pathogens Standard was all but finished in 1990, but stuck at OMB when Congress ordered it to be issued.
      Of course, Congress was different in those days. (Or Republicans were different.) Those all occurred before the Gingrich era when regulations became the main enemy of the American people. The only significant regulatory actions that Congress has taken addressing OSHA standards since then were under the Congressional Review Act, when they repealed OSHA’s ergonomics standard in 2001, and the Volks Rule in 2017.
      Now Republicans are no more likely to write or authorize an OSHA standard than they are to resurrect Roe v. Wade.

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