Dem
51
GOP
49
Many laws are intentionally vague. For example, a law may empower some agency to ban chemicals harmful to human health or protect endangered species—without listing the chemicals or the species. The intention is to let the relevant agency consult with experts and make decisions based on what those experts say. Conservatives have long chafed at laws that effectively give legislative power to executive agencies, even when Congress clearly intends to delegate that power. The claim is that Congress may not delegate legislative power to the executive branch, and if Congress wants to ban certain chemicals or protect certain species, Congress must name all of them in the law.
Yesterday, the Supreme Court heard oral arguments that could upend 40 years of precedents and hamstring executive agencies under all presidents going forward. That is precisely what the plaintiffs want: to get the Executive Branch out of the rule-making business. Taken to its extreme, the FDA would no longer have the power to approve or ban new drugs. Congress would have to approve or ban each new drug application itself. It would become the FDA... and every other executive branch agency. There are a lot of industries that would really, really, like gutting every government agency.
There are two cases at issue here, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. They relate to a Dept. of Commerce fishery inspection rule requiring vessel owners to pay for third parties to monitor their compliance with fishing regulations. The plaintiffs are backed by Koch network and other business interests. The plaintiffs want to overturn a 40-year-old Supreme Court decision known as Chevron that said judges should defer to agencies' interpretations of laws when the laws were not specific enough. Conservatives have been fighting to overturn Chevron for decades and now they have a chance, because Dobbs showed that the Supreme Court was willing to throw decades of jurisprudence in the paper shredder. The government is arguing that overturning Chevron would mean a "convulsive shock to the legal system" and unsettle hundreds or thousands of court decisions going back decades.
Legal scholars tend to agree it would be better if Congress would write into the laws more specifically what agencies are allowed to do. But others say Congress doesn't have the time or expertise to get involved in all the details dealt with by dozens of agencies. Also, circumstances change all the time, so if Congress couldn't delegate broad rule-making power to the agencies, the 535 members would have to do the work of tens of thousands of agency staffers.
One justice has a personal stake in all this: Neil Gorsuch. His mom, Anne Gorsuch, ran the EPA in the early 1980s and slashed air and water quality regulations with a vengeance. In recent years, like mother like son, Justice Gorsuch has voted against regulations that protect the environment and against COVID-19 mask regulations. In fact, when COVID-19 was spiking in early 2022, Gorsuch was the only justice who refused to wear a mask during oral hearings. Even Clarence Thomas had the sense to do that. This puts Gorsuch to the right of Thomas on health and environmental matters, even though it's a tight squeeze over there.
Gorsuch mère was appointed by Ronald Reagan with the mission to dismantle the EPA. She tried but immediately clashed with members of Congress, who claimed she was single-handedly trying to invalidate laws Congress had passed. Congress subpoenaed her over documents about hazardous waste cleanup and she refused to comply and was held in contempt of Congress. Eventually the pressure on her became too much and she resigned. Now the ball is in her son's Court. (V)