In Loper Bright Enterprises v.
Raimondo handed down by the U.S. Supreme Court on June 28, 2024, a majority
of the justices overruled Chevron v. Natural Resources Defense Council,
which had been the precedent giving regulatory agencies considerable discretion
in coming up with specific regulations, given the penchant of the Congress to
write vague laws. In the overturning case, a group of fishermen had objected to
having to pay for government observers to board the fishing boats to monitor
the fishing. On the merits, it does seem unfair for regulatory agencies to
charge the regulated to be regulated. In overturning Chevron, however, Loper
has much broader implications, chief among them being in terms of
separation of powers—specifically in reining in the expanding power of the
executive branch, here at the expense of the judiciary.
Chevron had “required
courts to give deference to federal agencies when creating regulations based on
an ambiguous law.”[1] Loper
could stimulate thought on whether Congress must necessarily promulgate law
using vague language. Certainly Congress is capable of being quite specific
when writing in loop-holes, or “carve outs,” for particular companies or
industries in exchange for political campaign contributions. Moreover, from
hearings, Congressional committee staff are surely capable of narrowing the
discretionary area in which regulators can exercise considerable power that is
essentially that of law-making. So one effect of Loper could be a shift of
power from the executive to the legislative branch.
The decision also stood to “shift
the balance of power between the executive and judicial branches.”[2]
Although CNN goes on to claim that the decision “hands an important victory to
conservatives who have sought for years to rein in the regulatory authority of
the ‘administrative state’,” strengthening the role of the judiciary to look at
administrative rulings is not in itself pro-business, as a judge could come
down on an agency as being too lenient to an industry. The notion of regulatory
capture, wherein whether from relying on data from a regulated industry or in
exchange for lucrative future jobs in the industry for regulators, especially
given government salary levels, means that giving courts more of a role in
being able to evaluate and overrule agency rule-making and decisions could be a
needed check against compromised regulators. At the same time, it is true that because
the Supreme Court is the head of the judicial branch of the federal government,
a decision that shifts power from one or two of the other branches to the judiciary
puts the Court in an institutional conflict of interest (and the justices in
personal conflicts of interest as their power would likely increase). Perhaps
Congress should have been the branch to decide on the role of the judiciary with
respect to the agencies in the executive branch.
Shifting power from the executive
branch to the two other branches, especially the judiciary in this case, can
also be viewed as a mild correction to the steadily increasing power of the U.S.
presidency. In The Imperial Presidency, Arthur Schlesinger traces the
increasing power that has come at the expense of the other two branches. The claim
of such a correction may be problematic, as reining in regulatory agencies is
not the same as reining in a president’s power, such as in exercising the bully
pulpit in being able to speak directly to the American people directly as well
as through a president’s surrogates. Also, a president as commander in chief
and in promulgating foreign policy is unaffected.
It can even be argued that as
presidents have typically been oriented to proposing broad policies for
Congress to enact through law, that a president’s attention has been minimal in
running the administrative agencies—essentially in supervising the cabinet secretaries
in their administrative roles at their respective agencies. Such overseeing
geared to specific regulations is, I submit, a function that presidents should
attend to even more than proposing policies for Congress to enact. In other words,
presidents should resist the sensationalistic allure of forming and publicly
and privately “selling” policies or ideas for new programs to the extent that the
time and effort of a president is monopolized thereby such that functioning as
head of the executive branch, which implements law, is slighted. It could even
be argued that the latter function should be primary. Were it in fact
primary, then Loper would indeed be capable of redressing the historical
trend of the imperial presidency to some extent because taking an active role at
the regulatory stage would be a significant part of the actual power exercised
by presidents. As of 2024 at least, Loper did not really touch the
problem of the imperial presidency increasingly compromising the balance of
power between the three branches of the U.S.’s federal government.
If democracy is ever at risk in the U.S., it would likely succumb to the hubris of an imperial president rather than to lawmakers in Congress writing laws with more specificity or judges overruling regulatory rulings. According to General Haig, President Nixon considered sending military forces to the Capitol to stave off impeachment during Watergate. Decades later, in December, 2023, protestors of the Congressional counting of the presidential votes of the states’ electoral colleges headed over to the Capitol from President Trump’s rally at the White House and successfully delayed the counting. On the very same day as its Loper decision, the U.S. Supreme Court handed down a ruling on another case—a decision that “limited the power of prosecutors to pursue obstruction charges” against the January 6th protesters at the Capitol.[3] To the extent that that ruling could enhance the imperial presidency itself, June 28, 2024 at the Court may actually have been a net-gain for the presidency.
2. Ibid.
3. John Fritze et al, “Takeaways from the Supreme Court’s Decision on January 6 Charges and What It Means for Donald Trump,” CNN.com, June 28, 2024 (accessed June 29, 2024).
