This is a stunning power grab. In effect, the Supreme Court has crowned itself the final arbiter of the world’s largest economy. Not since its 1803 decision in Marbury v. Madison, where the court ruled it could declare acts of Congress void, has the court so substantially realigned political and administrative power in the United States.

Over time, this claim of final judicial review established in Marbury v. Madison has worked fairly well. Judges are presumably experts in constitutional interpretation; however, when it comes to the numerous technical and scientific fields subject to government regulation by agencies ranging from the Department of Agriculture to the Federal Aviation Administration, judges are as clueless as the members of Congress.

Throughout this nation’s modern history, federal agencies, staffed by civil service employees with appropriate education and experience, have overseen reforms in areas such as workplace safety, clean air and water, safe food and pharmacological products, banking and so on. There have surely been shortcomings, retreats and missteps, usually attributed to changes in the presidency and/or Congress; but overall, the regulatory system has been a workable mechanism for injecting uniformity and some predictability into a complex and interconnected economy.

As in the court’s 2022 decision to overturn Roe v. Wade, their decision to overturn Chevron deference has the potential to fundamentally change people’s lives, especially in rural America. Loper Bright could defang important environmental protection laws, from the Clean Air Act and Clean Water Act, or even rollback the Environmental Protection Agency’s recent PFAS rulings, potentially allowing drinking water and farmers’ fields to remain contaminated for years to come. Numerous USDA regulations could be called into question, including the new rules and regulations around the Packers and Stockyards Act intended to protect farmers and ranchers from abusive industry practices.

Congress, with its constant electoral turnover and members drawn from all regions and diverse occupations, has long recognized the impossibility of addressing in detail all the problems and competing interests within the economy. Accordingly, laws are crafted in general terms, and career professionals at the agencies are entrusted to formulate discreet standards that respond to practical situations. As a more astute Supreme Court observed in 1940, “Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.”

History shows that there have always been fierce and powerful opponents of government regulations, both inside and outside of Congress. The same class that fought against child labor prohibitions and the eight-hour workday at the turn of the 20th century has always believed in the unregulated free market as an unalloyed benefit for everyone—witness the opposition to President Franklin Delano Roosevelt’s New Deal. Nevertheless, in 1946 Congress enacted the Administrative Procedures Act (APA), which recognized delegation as a necessity and made uniform the procedures to be followed by federal agencies regarding rule making, enforcement and judicial review. Kenneth Culp Davis, the preeminent legal scholar and vigorous advocate for adoption of the APA, stated the obvious: “The kind of government we have could not function without such delegation.”

Put another way, Congress admitted that it had neither the skills nor time to dive into the fine points of managing fish populations, the safety of everything from airplanes to skin ointments, livestock diseases and an infinite number of other industrial, agricultural, financial and environmental problems. So in a legislative body composed of people known for arrogance, posturing and bombast, an outburst of collective humility regarding their inherent limitations gave us the Administrative Procedures Act.

Thirty-eight years after the APA became law, the Supreme Court unanimously decided in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. that federal courts should also show some humility where the management of the United States economy was concerned. The Supreme Court ruled that the agencies, with their cadres of experts, were best positioned to supplement and enact the intent of federal legislation when the law itself was vague or indirect in its commands. Agencies were permitted to do this so long as they gave “a reasonable interpretation” to the statute’s mandates. Courts were to intervene only when an aggrieved party could show that the agency’s actions were “arbitrary” or “unreasonable.” “Judges are not experts in the field, and are not part of either political branch of government,” the court wrote in its decision. “Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences.” This practice of empowering agencies to implement congressional policies became known as Chevron deference.

Since its beginnings, the Chevron deference doctrine was relentlessly attacked by the free- market anti-regulation zealots in big business, as well as think tanks and lobbying organizations from the National Association of Manufacturers, the Heritage Foundation and the American Enterprise Institute to the American Farm Bureau Federation. Bellowing from the same script, these propagandists claimed that the civil servants were making laws in defiance of the Constitution’s assignment of that role to Congress. The fact that Congress had delegated rule-making and enforcement powers to the agencies conveniently escaped their notice as did the powers of Congress to oversee any agency it deemed to be acting improperly.

In 2016, Donald Trump adopted the battle cries for deregulation and eventually placed three justices with similar sentiments on the Supreme Court. Chief Justice John Roberts, a former lawyer for major corporations, was finally positioned to substantially weaken, if not obliterate, the federal administrative system. In Loper Bright, Roberts said it was only courts, and not agencies, who could decide what Congress intended with any particular piece of legislation; agencies were ousted from their historic roles and could no longer exercise discretion as to how congressional mandates should be implemented. It was necessary, Roberts wrote, “for us to leave Chevron behind.” In other words, the Supreme Court anointed itself the ultimate authority on how the U. S. economy was to function on a daily basis.  

In dissent, Justice Elena Kagan pointed out that it is impossible for legislators to anticipate all the problems and conflicts that can arise within the purview of an agency charged with implementing a regulatory statute. This is the reality the supporters of the APA and the decision in Chevron had acknowledged for decades.

The Roberts Court has not just gutted the effectiveness of the federal agencies; it has secured the management of the economy for itself. In theory, under the new Loper Bright doctrine, Congress must legislate with microscopic precision about technical matters such as alpha amino acids, noise pollution at the Grand Canyon and vertebrate fish populations (to use examples from Justice Kagan’s dissent). Of course, this is a practical impossibility because Congress, even when not gridlocked, lacks the ability to do this, and the Supreme Court has rendered the agencies powerless to do so.

The Supreme Court’s coup is now complete. Congress is directed to do what it is incapable of doing and the agencies have been benched.

Yet all is not doom and gloom. The Supreme Court may have bitten off more than it can swallow. In a typical year, the court issues only 75 written decisions so it is unlikely it will be managing as much of the economy as its outlandish theory allows. Moreover, the decision specifically states that it is not tampering in any way with the approximately 18,000 lower federal court decisions that followed the dictates of the Chevron case. Creative lawyers and litigants will have much to wrangle about regarding the ongoing impact of these decisions. On July 23, Senate Democrats introduced the Stop Corporate Capture Act, which would codify the Chevron doctrine and strengthen the rule-making process.

And it is worth noting that the Loper Bright decision did not curtail the rule-making powers of the federal agencies. These long-standing procedures allow for interested parties, including environmental and consumer activists, to present expert witnesses and make arguments in many of these hearings. Individual and groups who have a stake in agency rules would be well-advised to read the Federal Register and stay in touch with local government offices to monitor when rule-making or rule-amending hearings will take place.

Stephen Fortunato

Before serving for thirteen years as an Associate Justice of the Rhode Island Superior Court, Stephen Fortunato was for nearly three decades a civil rights lawyer and activist.