The Death of Expertise

One of the things dreaded about this ultraconservative Supreme Court was how - at some point - the Far Right Republican justices were going to nuke federal regulations from orbit in order to appease their uber-rich corporate buddies. Well, this weekend that finally happened, and apparently nuked the checks and balances of the Constitution with it (via Amy Howe at SCOTUSBlog): 

In a major ruling, the Supreme Court on Friday cut back sharply on the power of federal agencies to interpret the laws they administer and ruled that courts should rely on their own interpretion of ambiguous laws. The decision will likely have far-reaching effects across the country, from environmental regulation to healthcare costs.

By a vote of 6-3, the justices overruled their landmark 1984 decision in Chevron v. Natural Resources Defense Council, which gave rise to the doctrine known as the Chevron doctrine. Under that doctrine, if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable. But in a 35-page ruling by Chief Justice John Roberts, the justices rejected that doctrine, calling it “fundamentally misguided.”

Justice Elena Kagan dissented, in an opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Kagan predicted that Friday’s ruling “will cause a massive shock to the legal system...”

The justices took up their appeals, agreeing to address only the Chevron question in Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo. (Justice Ketanji Brown Jackson dissented in the Relentless case but was recused from the Loper-Bright case, presumably because she had heard oral argument in the case while she was still a judge on the U.S. Court of Appeals for the District of Columbia Circuit.)

Chevron deference, Roberts explained in his opinion for the court on Friday, is inconsistent with the Administrative Procedure Act, a federal law that sets out the procedures that federal agencies must follow as well as instructions for courts to review actions by those agencies. The APA, Roberts noted, directs courts to “decide legal questions by applying their own judgment” and therefore “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference. Under the APA,” Roberts concluded, “it thus remains the responsibility of the court to decide whether the law means what the agency says.”

Instead of the Executive Branch making these decisions, Roberts is saying, it should be the Judiciary. And by the sound of it, the Legislative Branch passing the regulatory laws can't say anything about it either. 

Roberts rejected any suggestion that agencies, rather than courts, are better suited to determine what ambiguities in a federal law might mean. Even when those ambiguities involve technical or scientific questions that fall within an agency’s area of expertise, Roberts emphasized, “Congress expects courts to handle technical statutory questions” – and courts also have the benefit of briefing from the parties and “friends of the court.”

The problem with this position is that judges really aren't the experts they think they are. On matters of law, yes. On matters of what construes as toxic waste, or the effectiveness of safety gear in hazardous work areas, or the type of materials that Boeing should use to build planes that are falling apart as I blog this, no they are not.

This Court is effectively kneecapping every civil servant in every regulatory office at the federal - and likely state - level, forcing them to cope with filing requests to judges for every safety / health regulation challenge that the major corporations handling dangerous or costly products - the energy companies, the chemical manufacturers, pharmaceuticals, car makers, building constructors, anything listed in the Thomas Register - are now likely to file.

Everything regarding clean water and clean air are now out the window, which you'll need to keep closed if you suffer from allergies and asthma and anything else pollution can affect. Remember what happened to Flint, Michigan? Start multiplying that by 100 as poor communities find themselves dumping grounds for toxic waste that companies no longer have to regulate.

Anyone arguing "self-regulation" will take place because corporations won't profit from hazardous business practices should remember all the times corporations STILL failed to hold themselves to standards while spilling pollution everywhere. If a company can cut corners and save spending even a small sum of money on something in order to report bigger profits, they will.

Government regulation was the only thing keeping the massive corporations in line when it came to cleaning up the pollution that threatened our nation back in the 1970s. People today can't remember how bad it got during the post World War II era of mass industrialization and failures to keep things clean. Lead poisoning was a serious problem with the breathable air, something that the clean air laws reduced to a point where scientists made legitimate claims that it's lessened the crime rate and extended lifespans.

But we're not going to have that scientific expertise making the decisions that can affect regional health or workplace safety anymore. Now we're going to rely on judges who are going to act on their partisan agendas instead of the facts. We're going to have justices deciding on the difference between "nitrous" and "nitrogen", something they are clearly not prepared for.

And that's just the environment we're talking about. In terms of financial safety, Roberts' Court kneecapped the Securities and Exchange Commission in a separate ruling that makes it harder to stop the fraudsters and grifters looking to inflict their greed on the rest of us.

This is where the Club For Greed's deregulatory crusade has led us: A conservative court rigging the system to answer to THEIR authority and no one else's. Not the Congress, not the Presidency.

Gods help us.