WASHINGTON (CN) — In a scathing dissent from the bench on Friday, Justice Elena Kagan excoriated her conservative colleagues for inserting themselves into the realm of current and future regulation and warned of an impending massive shock to the administrative system.
“A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority,” Kagan said of the court’s ruling. “The majority disdains restraint, and grasps for power.”
In a 6-3 ruling, the justices on Friday ended the 40-year practice that informed federal judges’ decision-making when federal agencies and their actions were challenged. The high court's 1984 ruling in Chevron v. Natural Resources Defense Council had limited judicial decision-making in favor of agency expertise.
A range of experts jumped on Kagan’s premonition, joining her in warning that Friday's decision will have far-reaching effects. From the halls of Congress to federal courtrooms, they say the decision opens the window for an increase in litigation against federal rules, as well as a potential chill on new ones.
“The federal government and environmental groups are going to be up to our ears in litigation just trying to preserve the status quo,” Sam Sankar, the senior vice president of programs at Earthjustice, said in a press briefing following the ruling.
Kagan noted that “Chevron is as embedded as embedded gets in the law." In the 40 years since deciding Chevron, she noted, the high court had upheld it over 70 times, while district and appellate courts had upheld it thousands of times.
Friday’s decision flipped the script, releasing judges from Chevron’s constraints. For government regulators, the ruling is a proverbial axe that will hang over their heads as they attempt to implement new rules protecting consumers, workers and the environment.
“This is especially valuable for conservative judges who are inclined towards striking down regulations,” Sankar added. “If they had a knife before, they have a chainsaw now.”
Chief Justice John Roberts tried to assuage these concerns, claiming that although the court was throwing out Chevron, its progeny were safe.
The assurance came as a cold comfort in a case that overturned a foundational precedent, said Sean Donahue, a partner at D.C.-based Donahue Goldberg Herzog who represents the Environmental Defense Fund.
Donahue said the limited protection will be important for critical regulations but that it won’t stop the flood of challenges to many rules.
“There will be just this cottage industry — it'll be more like a mansion industry, it'll be a huge industry — of attacking well-settled policies, because this opens up a whole bunch of options,” Donahue said in a press briefing following the ruling.
A handful of cases currently moving through the courts could offer the first examples of what a post-Chevron legal landscape will look like.
Natalie Nolen, a trial lawyer and managing partner at the D.C. firm Infinite Global, highlighted ongoing challenges to the Federal Trade Commission’s non-compete ban, the Consumer Financial Protection Bureau’s credit card late-fee ban and certain Environmental Protection Agency regulations.
Prior to Friday’s decision, federal judges would, as they have for the last 40 years, deferred to the agencies, Nolen said. Now, judges will no longer be required to display that deference.
“Ultimately, this passes the baton back to the courts to make the final call on these regulations,” Nolen said.
While some judges may invite more decision-making authority, the ruling could also make their jobs more strenuous.
Joanne Carney, chief government relations officer for the American Association for the Advancement of Sciences, told Courthouse News that federal judges will now be forced to delve into complex issues without the sort of expert help agencies rely on when crafting federal rules.
“Judges are generalists,” Carney said, arguing they are ill-equipped to handle complicated questions regarding topics like the environment, public health and AI.
The volume of such cases will likely grow exponentially, Carney said. Many might ultimately find their way to the Supreme Court.
According to Carney, the impacts of Friday's decision will also reach Capitol Hill — placing a chill on legislation and forcing lawmakers to avoid any ambiguity while crafting laws, lest those laws spend years moving through the courts before being ultimately decided by the Supreme Court.
Even with an eye on the minutiae of federal governance, it will be impossible for lawmakers to safeguard statutes against such challenges, said David Doniger, the Climate & Clean Energy Program Senior Strategic Director at the Natural Resources Defense Council.
“Congress — when it writes these laws — knows that it can't foresee everything and it can't do everything in real time,” Doniger said. “You're lucky if Congress revisits a statute every 10 years. It's been 34 years since the last full review of the Clean Air Act.”
That principle also works in reverse, leaving businesses less sure about the status of regulations. Kevin King, an appellate and Supreme Court lawyer at the Covington law firm, said the ruling could impact how businesses calculate risk when considering how to comply with agency regulations.
Under Chevron, the interpretation of a statute could change based on which administration held power. After Chevron, though, the reading could vary between individual judges.
“Now that courts are no longer required to defer to agencies, it is more likely that courts will reach differing and sometimes incompatible conclusions about what federal statutes mean — leaving businesses exposed to a patchwork of interpretations that may be difficult to manage at times,” King said in a statement.
Much is still unclear about how the ruling will play out in the lower courts. “The most surprising thing about the opinion is that it leaves more of these details unspecified than you might have hoped," said Daniel Walters, a law professor at Texas A&M University School of Law.
Walters said overturning Chevron could shift judges’ attention to another precedent, Skidmore v. Swift and Company. The 1944 ruling said agency expertise could answer legal questions in some circumstances, depending on the how agency’s interpretations and opinions shaped a body of expertise that courts could rely on.
“I suspect that lower courts will latch onto a lot of the favorable citations to Skidmore and its admonition to courts to respect agency judgments while not categorically deferring to them," Walters said. Such an interpretation "will give them the permission they need to avoid exercising truly independent judgment on matters that they are utterly unequipped to navigate."
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