SCOTUS scuttles executive branch's reliance on experts

This month, the U.S. Supreme Court transformed the nation’s power from the people to a king and his court.

Literally.

Understandably, much attention has been paid to the Supreme Court’s decision granting immunity to U.S. Presidents for what judges consider “official acts,” but a few days before that shocker, the conservative-dominated Supreme Court ruled that routine findings by federal experts must henceforth be determined by judges, too.

That threatens to upend the “Chevron doctrine” that since 1984 has deferred to people with expertise to interpret appropriate actions when Congress wasn’t specific in laws. Now, some appointed federal judge could preside over suitable consequences for, say, pharmaceutical corporations breaking medical standards, investors gaming the system to manipulate stocks, or employers defying labor laws or safety regulations.

The Court’s 6-3 ruling threatens to unleash chaos throughout government, and to create uncertainty about limits on agencies’ power to punish lawbreakers, from tax cheats and polluters jeopardizing air and water to financial scofflaws held accountable by the Consumer Financial Protection Bureau.

Justice Sonia Sotomayor in her dissent said the results will be “earthshattering” and “a massive sea change.

“The constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress,” she added.

Justice Elena Kagan in her own dissent wrote, “A rule of judicial humility gives way to a rule of judicial hubris. The majority today gives itself exclusive power over every open issue – no matter how expertise-driven or policy-laden – involving the meaning of regulatory law.

“Will courts be able to decide these issues as to things they know nothing about?” she asked.

Such revelations about how much the Court has swung against regular people may escape them, according to labor journalist Steven Greenhouse, a fellow at the Century Foundation.

“Most Americans probably don’t know just how anti-worker and anti-union it really is,” he wrote in The Guardian. “The justices have often shown a stunning callousness toward workers, and that means a callousness toward average Americans.”

The conservative majority held that the Constitution’s 7th Amendment guarantee to a trial by jury applies when the government seeks civil penalties for violations, but author and Rutgers professor Anthony Grasso writes that the ruling will have four profound effects: limiting government’s ability to govern, undermining Americans’ self-governance, benefiting big corporations that can afford endless litigation at the expense of the public good, and endangering policies Big Business opposes.

“For 40 years, the federal government’s more than 400 agencies, sub-agencies, independent commissions, and executive branch departments have been able to rely on scientific and professional expertise to fill in the gaps of ambiguous legislation without worrying about judicial interference,” he said.

Joyce Vance, a former U.S. Attorney for the Northern District of Alabama, said upsetting the status quo “dramatically reshape[s] the balance of power between the three branches of government, knocking the checks and balances envisioned by the Founding Fathers off kilter.

“What happens if a company that builds airplanes objects to an agency decision that requires them to use, say, six bolts to attach an engine to a plane?” she continued. “They can go to court and make their case to a federal judge. Then, that judge – a lawyer, not an engineer – gets to decide how it will work.”

In the original Chevron decision during the Reagan administration (advocated by his EPA Administrator Anne Gorsuch, mother of current conservative Supreme Court Justice Neil Gorsuch!) the majority opinion written by Justice John Paul Stevens (appointed by Republican President Gerald Ford) gave three reasons for establishing the doctrine. One, by not specifically addressing an issue, Congress implicitly vests an agency with a limited delegation to act (reasonably). Two, agencies (not courts) have greater institutional competence and expertise in an esoteric subject matter. Three, the executive branch of government, not the judicial branch, should make policy choices.

Becky Pringle, president of the National Education Association teachers union, said the Court’s “MAGA supermajority granted themselves blanket authority to rewrite the rules in favor of the billionaires and major corporations — while leaving the American people to pay the price.”

Writing specifically about the impact on enforcing labor laws, Jeevna Sheth, a policy analyst at the Center for American Progress think tank, said, "Future NLRB decisions would likely be subject to heightened scrutiny ... making it more difficult for (the Board) to effectively protect American workers’ rights.”

Indeed, from now on – barring any reversal of the ruling or change in the Supreme Court – courts from coast to coast can strike down rules Congress approved based on judges’ personal policy preferences or prejudices.

Chief Justice John Roberts was joined by Gorsuch, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett and Clarence Thomas – who on July 2 separately said that he thinks the Occupational Safety and Health Administration is unconstitutional.