The American legal system has been completely upended. On June 28th, the Supreme Court of the United States has voted 6–3 to overturn a 1984 decision which declared that when a statute is ambiguous, courts should defer to reasonable interpretations from public agencies.
For many years, we have witnessed the erosion of democracy in the hearts and minds of American people. Just this week, Rep. Jamaal Bowman from NY-16 was unseated after discriminatory redistricting and an injection of $15 million for his AIPAC-backed opponent — more than any other outside organization has ever spent on a single House of Representatives election in history. The system has proven time and time again that it is designed by an elite, wealthy group that is not representative of the electorate, and that results can be bought and paid for by undemocratic agents.
The degradation of America’s democracy has come to a head this morning when conservative members of the Supreme Court undid the Chevron doctrine, one of the most cited Supreme Court cases since its decision over forty years ago. In simple terms, Chevron v. The Natural Resourses Defense Council was a landmark case that established the Chevron doctrine, which required U.S. federal courts to assess whether a regulatory law was ambiguous in meaning. If the language was deemed ambiguous, the Chevron doctrine granted public agencies — the Food and Drug Administration (FDA), the Environmental Protection Agency (EPA), and hundreds of other agencies — the power to interpret laws when federal court judges did not have the expertise. The overturning of Chevron reverted statutory interpretation back to the courts.
From its onset, Chevron was a politically driven decision during the Reagan administration and seen as a win for conservatives. Federal courts were more liberal, and federal agencies were held by the conservative executive branch. This decision allowed the private industry to act freely, given the lack of constraints set by Reagan’s government agencies.
As time progressed, conservatives realized that a well-functioning, well-staffed government agency under a Democratic executive branch could impose more regulations than the federal court system could, especially environmental statutes such as the Clean Water Act and Clean Air Act. This was bad for business. Thus came forth the conservatives’ plan to backtrack their own victory and strip statutory interpretation from government agencies — the start of many initiatives outlined in Project 2025.
To say the impacts of overturning Chevron v. NRDC is monumental is an understatement. The Chevron doctrine allowed the enforcement of rules and regulations, many of which pertain to our day-to-day lives, to be led by experts. The FDA regulates the food that we consume. The EPA regulates the water that we drink. The CDC regulates our public health and disease prevention. These agencies are led by scientists, researchers, and doctors who brought needed expertise to our increasingly complex lives.
Unfortunately, the decisions that pertain to our health and livelihood, not to mention labor and transportation and education, are now in the hands of federal court judges.
In writing laws, Congress has frequently used open-ended directives, such as “ensuring the rule is in the public interest,” leaving it to agency experts to write rules to limit toxic smog, ensure that health plans cover basic medical services, ensure the safety of drugs and cosmetics and protect consumers from risky corporate financial behavior. — Coral Davenport, et. al for the New York Times
The primary argument for this upheaval is that while government agencies have the expertise to interpret fact, they do not have the expertise to interpret law. Thus, statutory interpretation should be left to the legal expertise of federal judges. Government agencies can now only confidently enforce regulations that are unambiguous and must defer to the courts for regulations that are ambiguous — a sentiment that is itself ambiguous. With just ten seconds of critical thinking, there are three fundamentally dangerous contradictions:
- Ambiguity is necessary and purposeful. Putting aside the subjectivity of what language can be deemed as ambiguous, Congress writes legislation that is intentionally ambiguous because they, too, rely on the expertise of government agencies. A congressman — who is designed to be an everyday person representing their district — cannot be expected to write legislation that perfectly outlines the standard to which we condone water pollutants in reservoirs or alter sub grade chemical compositions prior to construction. Even if entire scientific and medical libraries were transmitted into the minds of every congressman, their ability to write scientifically useful and effective regulations would be dead on arrival given the ineffective nature of our congress. In 1984, when the original case was decided, the 98th Congress enacted 687 pieces of legislation. Today’s congress has enacted less than 70. Our congress is deadlocked — unable to write unambiguous, prescriptive legislation for every agency.
- Judges are experts in law but not fact. Federal judges lack the training, background, and modern context needed to interpret technical disputes over science and technology. They are not artificial intelligence researchers at the forefront of technology ethics. They are not out in the field analyzing water samples and witnessing the destruction of biodiversity. Nor have they finished their doctoral thesis on early childhood education. Those people are in the agencies. For federal judges to interpret legality, they require a firm understanding of both how statutes are able to be interpreted and the factual nuances in which a law can be broken outside of what is explicitly stated. In other words, a judge should not be able to acquit a corporation polluting our waters simply because the Clean Water Act does not explicitly include the word “microplastics.”
- This is an undemocratic shift in power towards non-elected officials. The opposition to Chevron commonly cite that agency leaders have immense power despite not holding democratically elected positions. Yet, the non-elected judiciary branch has given itself access and jurisdiction over any and every open issue in the United States. The expansion of reach, known as the Imperial Judiciary, comes in the form of a handful of individuals with unchecked and irremovable power that can reshape the nation at a whim. This fear is not new; judges have no political accountability. They cannot be voted out, nor removed by an elected official (judicial impeachment has rarely succeeded). Furthermore, both Democrat and Republican members of Congress will be pressured to write detailed legislation that fit their political needs and, given their own lack of expertise, seek to further outsource lawmaking to think tanks and corporations. These private entities have the time and resources to research and craft immensely prescriptive regulations because they are not subject to election cycles. They are also able to influence federal judges, in need of the same information and data as Congress. There is no doubt that private entities will have an even more outsized impact on our politics and how agencies operate than they already do. In either case, neither judges nor private entities will make administrative law any more democratic.
How this affects you today
The essence of the decision will have three macro effects.
First, legislators will be forced to write legislation that they are not qualified to make in short durations of time, thus depending on outside sources to write legislation for them.
Second, government agencies will attempt to enforce legislation as best as they are able to, knowing that any and all action will have to go proceed through the court first.
Third, federal judges will be overwhelmed by the influx of highly technical challenges from corporations (for reference, over 17,000 cases have referred to the Chevron doctrine in the last forty years) seeking to exploit the system.
Countless regulations, outlined by the New York Times, are now legally vulnerable to be diminished and overruled including:
- The Environmental Protection Agency’s ability to: limit air and water pollution, limit toxic chemicals, limit carbon emissions from cars and trucks, promote carbon sequestering, accelerating the advancement to electric vehicles, and more.
- The Food and Drug Administration’s ability to: limit cigarette and e-cigarette usage, protect the usage of mifepristone and misoprostol (yes, the abortion pill that was just dismissed from the courts is now in the courts’ hands again), limit unsafe synthetic ingredients, and more.
- The Centers for Medicare and Medicaid Services’ abilities to: administer Medicare, administer Medicaid, administer the Affordable Care Act, monitor insurance companies, monitor healthcare provider pay, negotiate drug prices, and more.
There may be challenges to the various efforts around student loan forgiveness that the Biden administration has quietly executed. Wage laws will be more difficult to enforce. Affordable housing development may face further opposition. There is no shortage to the harm of this recent decision; over 450 government agencies that are now being affected.
The future depends on (you)r representatives
Congress has the ability to temper the pandemonium that is to arise from this decision. Critically, Congress can expressly delegate authority to the executive branch and its agencies through legislation. In other words, Congress can somewhat codify the Chevron doctrine, like how Democrats have promised to codify Roe v Wade. By explicitly imbuing some or all expert agencies with statutory interpretation, federal courts would once again have to defer to expert opinion in technical lawsuits. This method would have to be used on a case-by-case basis due to the Non-Delegation doctrine (which states Congress cannot say “it’s not my job” and wholly shift their responsibility to the executive branch). Though time-consuming, this would restore some order to our checks and balance system.
This method is unlikely.
Other less likely actions include packing SCOTUS with less radical judges, attempting to successfully impeach Supreme Justices Clarence Thomas and Samuel Alito for corruption, and writing and enacting effectively detailed legislation. These methods are even more unlikely.
There are certainly actions you as an individual can and should take as we begin to navigate the circumstances, even if impact is not immediate nor guaranteed.
For starters, it is imperative that you understand a vote for the Democratic party is a vote against the Imperial Judiciary and Project 2025. With the Republican party seeking to further erode the checks and balance system with a systematic operational plan, the Democratic presidential candidate is the only one that is positioned well enough to halt any more radical SCOTUS or federal court appointments.
With that understanding, vote. After Biden’s abysmal performance in the first presidential debate, it is easy to fall into despair and apathy. Yet, we must remember that power has shifted to Congress, too. It is of no exaggeration that the more progressive congressmen we are able to elect, the greater likelihood that Congress is able to challenge and combat this decision through various methods of codification.
Lastly, we must become involved in our community and connect with our neighbors. There is no greater preparation for a progressive candidate than community-building early. Community is where we will find our social lifelines: (1) it holds people accountable to vote and engage, (2) it grounds people’s perception of reality which weakens the effects of algorithm-driven feeds and echo chambers, and (3) it enriches people’s well-being in both tangible (e.g., favors, resources) and intangible ways (e.g., better mental health). Gen Z is not as social of a generation. However, without community, liberation can feel like a dream rather than a destination.
Time will tell how congress and agencies adapt to what had been common practice for forty years. With legal experts on both sides, there will certainly be unexpected developments. In the meantime, try not to eat or drink anything. Also, avoid breathing air.
