Will Justice Barrett Kill the Modern Administrative State?

By
Monday, October 26th, 2020

Photograph: Xinhua/Rex/Shutterstock

While concerns about the access to reproductive care and the fate of the Affordable Care Act dominate the national conversation about the nomination of Judge Amy Coney Barrett to the Supreme Court, the Environmental Protection Information Center (EPIC) is concerned: What are her views on Chevron deference? If you have no idea what that is or what it means, don’t worry, you are not alone.

Environmentalism relies on the modern administrative state—the alphabet soup of agencies that interpret and apply statutes passed by Congress. That administrative state, the fundamental basis of modern government, is under threat by attempts to chip away at the power of the administrative state to regulate. At the core of these attacks by conservative judicial activists are attempts to overturn the longstanding principle of Chevron deference (named after the 1984 Supreme Court case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.).

Here’s what Chevron deference is about: The world is complicated. Too complicated for Congress to pass extremely detailed legislation. Instead, Congress often leaves the details to the experts: the agencies created and charged by Congress to regulate certain areas. Whether it is determining the safe levels for an airborne pollutant or determining what qualifies as a “distinct population segment” when thinking about endangered species, Congress often leaves these critical judgments to the experts within each agency. Thus, the EPA figures out what are safe levels for pollutants and the U.S. Fish and Wildlife Service considers questions of endangered species. Chevron deference recognizes that when Congress isn’t clear, the agencies are best equipped to interpret the statute, and provided that their interpretations are reasonable, they are entitled to “deference,” meaning that a court cannot supplant its own interpretation over the agency’s.

It may come as a surprise that EPIC would rise to be a champion of Chevron deference—after all, EPIC currently has seven ongoing lawsuits that challenge the decisions of federal agencies when interpreting federal law, such as our lawsuit challenging new regulations to implement the National Environmental Policy Act (NEPA). But the same legal doctrine that helps to insulate government agencies from criticism from the environmental community also protects the agencies from attack by extractive industries and conservative business interests.

The modern conservative judicial movement has put a bullseye on Chevron deference precisely because it enables a modern regulatory state. Despite it being long standing legal precedent-—and therefore somewhat immune to challenge—Chief Justice Roberts and Justices Gorsuch, Alito, Thomas and Kavanaugh have all questioned Chevron deference to a degree, although there clearly have not been five votes to overturn the doctrine…yet. Judge Barrett, a dyed-in-the-wool conservative and proud member of the Federalist Society may be that fifth vote to axe the doctrine or her presence could provide greater breathing room for its gutting. Judge Barrett has indicated, in academic writing, that she does not believe that precedent should bind judges when they believe that something clearly violates the Constitution—and the Chevron deference doctrine has been attacked by the conservative legal movement as unconstitutional, as it (theoretically) cedes the power to interpret the law from the Judicial to the Executive Branch. However, in her time on the 7th Circuit, Judge Barrett did invoke Chevron deference to defend a Trump Administration rule limiting immigration. Or it may be that the court continues its current trajectory of “distinguishing” individual cases from Chevron, thereby minimizing its effect. In this future, the court can chip away at Chevron until the exceptions swallow the rule and the doctrine has been de facto overturned.

Other essential foundations of the modern administrative state may also be on the chopping block. The Supreme Court might revisit and constrain the Legislative branch by more narrowly interpreting the Commerce Clause, the part of the Constitution that provides the legal grounds for nearly all federal environmental laws. The Supreme Court could revive Lochner-era theories about the “freedom to contract,” to limit regulations. The Court could also attempt to resuscitate the “nondelegation doctrine,” something considered dead after the New Deal, but has been revived by the Trump-era packing of the judiciary. Or the Court could throw up new roadblocks to litigants who attempt to enforce environmental laws, such as heightened requirements for public interest groups to show “standing,” as the teeth of federal regulations often are found in groups like EPIC willing to actually enforce the law (a power that the federal government often abdicates).

Our planet can’t afford Amy Coney Barrett on the Supreme Court.

 

*This was originally published in the Times-Standard on Oct. 17, 2020.