Commentary on the USSC decision to neuter congress and federal agencies

As I argued yesterday, the decision by the USSC yesterday to eliminate the Chevron defense amounted to a massive shift of power from the president, congress and federal agencies to the USSC itself. That case is at least as damaging to democracy and the rule of law as the catastrophic 2010 Citizens United case that legalized large-scale corruption in American politics. 

The last time the USSC took this much power for itself, was in 1803 in Marbury v. Madison. That decision held that the USSC itself, not congress, the president or voters, had the power to decide what laws were constitutional and what ones were not.

The Nation writes about the impact of nullifying Chevron in the Loper Bright Enterprises v. Raimondo decision the USSC published yesterday:

We Just Witnessed the Biggest Supreme Court Power Grab Since 1803

The court has given itself nearly unlimited power over the administrative state, putting everything from environmental protections to workers’ rights at risk 

In the biggest judicial power grab since 1803, the Supreme Court today overruled Chevron v. Natural Resources Defense Council, a 1984 case that instructed the judiciary to defer to the president and the president’s experts in executive agencies when determining how best to enforce laws passed by Congress. In so doing, the court gave itself nearly unlimited power over the administrative state and its regulatory agencies.

Now, if you’re not a lawyer, that probably sounds bad, but mainly in a technical sense. Regulatory agencies like the Environmental Protection Agency and the Securities and Exchange Commission issue influential but deeply complicated rules, so it makes sense that somebody should have final authority over whether and how to enforce those rules. Since we have already made the disastrous decision to allow the Supreme Court to tell us who gets to be president and what women can be forced to do with their bodies, it might not sound like that big of a leap to also let the court decide how much lead can leak into our drinking water or which predators are allowed to sell mortgages.

The thing is: The US Constitution, flawed though it is, has already answered the question of who gets to decide how to enforce our laws. The Constitution says, quite clearly, that Congress passes laws and the president enforces them. The Supreme Court, constitutionally speaking, has no role in determining whether Congress was right to pass the law, or if the executive branch is right to enforce it, or how presidents should use the authority granted to them by Congress. So, for instance, if Congress passes a Clean Air Act (which it did in in 1963) and the president creates an executive agency to enforce it (which President Richard Nixon did in 1970), then it’s really not up to the Supreme Court to say, “Well, actually, ‘clean air’ doesn’t mean what the EPA thinks it means.”

For an unelected panel of judges to come in, above the agencies, and tell them how the president is allowed to enforce laws is a perversion of the constitutional order and separation of powers—and a repudiation of democracy itself.

But repudiating democracy to expand its own power is exactly what the Supreme Court did today in its ruling in Loper Bright Enterprises v. Raimondo, which overturned Chevron. In a 6-3 decision, which split exactly along party lines, Chief Justice John Roberts ruled that the courts—and, more particularly, his court and the people who have bought and paid for the justices on it—are the sole arbiters of which laws can be enforced and what enforcement of those laws must look like. Roberts ruled that courts, and only courts, are allowed to figure out what Congress meant to do and impose those interpretations on the rest of society. He wrote that “agencies have no special competence in resolving statutory ambiguities. Courts do.”

That is a naked power grab that places the court ahead of literal experts chosen by the president, who is the one elected official we all get to vote for. Who do you think has a “special competence” in resolving what the word “clean” means in the context of the “Clean Water” or “Clean Air” act—experts at the EPA or justices on Harlan Crow’s yacht? Who do you think has a special competence to resolve what “safe” working conditions require—experts at the Occupational Safety and Health Administration or justices who have never worked as much as a day at a job that requires them to be outside? Who do you think has a special competence to resolve what “equality” means under the Civil Rights Act for women in workplaces—experts at the Equal Employment Opportunity Commission or justices who have been accused of attempted rape?  

[The] ruling in Loper Bright effectively completes the suite of powers the Supreme Court has given itself to lord over everybody else. The court can now: veto acts of Congress as unconstitutional, decide who gets to be president [referring to the USSC appointing Bush to power in 2000], and decide what the president is allowed to do while in office.  

There is literally nothing that can be done to restore the rights the Supreme Court has taken away, or restore the power the Constitution gives to the people, other than reforming the Supreme Court and flooding it with justices who do not think they are kings. Court expansion is the only way to stop the Supreme Court. But to expand the court we have to elect Democrats, many of whom are also against court expansion. Then we have to push those Democrats to get rid of the filibuster, which many of them don’t want to do. Then we have to get Democrats to use their power. Then we have to get the Democratic president to put the right kinds of justices on the court. And we have to do it all over the unified objection of the Republican Party, the Christian right, the fossil fuel industry, the financial services industry, your racist uncle who watches Fox News, and Ice Cube.

Predicting the future

What is going to go away is things like environmental regulations, consumer protections, civil liberties protections, worker protections and financial regulations that experts have put in place. Experts write regulations to try to implement the incompetence, incoherence and amateur slop that congress routinely produces in the form of things called "laws." Now, the "experts", i.e., unelected federal judges, are going to simply push aside the actual experts and the idiots in congress. Now the USSC has the power tell us what all that congressional slop really means. 

What does all of this mean? 

What it all means is crystal clear. It means that kleptocratic authoritarianism is now fully empowered to rise and displace democracy, the rule of law and civil liberties. That has been the dream of America's radical right authoritarian wealth and power movement for decades. A gigantic authoritarian payoff is finally at hand. 

Kleptocratic plutocrats will now attack every regulation that stands in the way of profit. Kleptocratic Christian nationalist theocrats will now attack and obliterate the last vestiges of church-state separation. Taxpayers will pay both the plutocrats and the theocrats. Consumers will get lied to and ripped off. Elections will become a sham. Government will become kleptocratic. Corporate profits will soar. The environment, e.g., our drinking water and air, will be more aggressively polluted. Secularism will be slowly wrung out of American society, commerce and government and replaced with a bigoted Christian Taliban implementing Christian Sharia law. Wealth inequality will continue its ruthless rise, leaving a few very rich elites and their hired goon enforcers to rule everyone else with an iron fist. Finally, an impenetrable veil of secrecy will shield all of the sleaze, corruption, fornication, treason and abomination that wealthy and/or powerful elites will conduct their daily business behind, much like as is the case today (but just a lot more so). 

How things are going to play out for regular

people in the new, post-Chevron world?

I hope not, but it is now possible

In other words, what is this USSC decision means is that we are all well and truly screwed, but elites are well and truly empowered and unleashed.

Q: Will there be a serious power struggle between the USSC vs. congress and or the next president in 2025-2026?