Supreme Court Shifts Regulatory Power From Experts To Judges

Primary Topic

This episode analyzes a significant shift in the U.S. Supreme Court's approach to regulatory authority, emphasizing a move from reliance on expert agency opinions to judicial oversight.

Episode Summary

In a landmark decision, the U.S. Supreme Court has altered the landscape of regulatory law, notably ending the "Chevron deference," a doctrine that had empowered federal agencies to interpret ambiguous statutes based on their expertise. Hosts Sarah McCammon, Domenico Montanaro, and legal expert Nina Totenberg dissect the implications of this change, discussing its potential to reshape federal regulatory practices and its impact on presidential powers. The episode also delves into contemporary political reactions and the broader ramifications for the separation of powers and the upcoming presidential election, highlighting the Court's pivotal role in key societal and economic regulations.

Main Takeaways

  1. The Supreme Court has ended Chevron deference, significantly shifting regulatory power from federal agencies to the judiciary.
  2. This decision could hobble presidential authority over regulatory matters, affecting future governance.
  3. Political reactions are sharply divided, with significant implications for upcoming elections.
  4. The episode underscores the Court's increased involvement in politically charged issues, which may affect its public perception.
  5. Long-term impacts on U.S. regulatory practices and presidential powers are anticipated, with ongoing legal and political debates expected.

Episode Chapters

1. Introduction

Hosts introduce the topic and set the stage for a detailed discussion on recent Supreme Court decisions. Sarah McCammon: "All of the decisions are out. And it was one for the history books."

2. The End of Chevron Deference

Detailed examination of the Supreme Court's decision to end Chevron deference, exploring its historical context and future implications. Nina Totenberg: "The court said, sorry, we're getting rid of Chevron deference."

3. Political and Legal Ramifications

Analysis of the political landscape and the Supreme Court's role in shaping regulatory and presidential powers. Joe Biden: "With today's Supreme Court decision on presidential immunity, that fundamentally changed."

4. Broader Implications and Public Perception

Discussion on the broader societal impacts and how these judicial changes are perceived by the public and politicians. Nina Totenberg: "It is also a good tool to get out the left because all you have to say is, look, a couple of these justices are in their mid or late seventies."

Actionable Advice

  1. Stay informed on Supreme Court decisions as they can have wide-reaching effects on governance and individual rights.
  2. Engage in civic discussions and educational forums to understand the impact of judicial changes on regulatory practices.
  3. Advocate for transparency and ethics in judicial proceedings to maintain trust in the legal system.
  4. Consider the long-term implications of judicial decisions when voting in elections.
  5. Support legal and civic education initiatives to promote an informed electorate.

About This Episode

In our wrap of the Supreme Court term, we reflect on the huge number of consequential rulings and explain some of the cases we initially did not have time to cover — including three that will dramatically reshape how financial, environmental and all other regulations work in the United States going forward.

This episode: national political correspondent Sarah McCammon, legal affairs correspondent Nina Totenberg, and senior political editor and correspondent Domenico Montanaro.

The podcast is produced by Jeongyoon Han, Casey Morell and Kelli Wessinger. Our intern is Bria Suggs. Our editor is Eric McDaniel. Our executive producer is Muthoni Muturi.

People

Joe Biden, Sarah McCammon, Domenico Montanaro, Nina Totenberg

Companies

None

Books

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Guest Name(s):

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Content Warnings:

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Transcript

Rebecca
Hi, this is Rebecca from London, England. Everyone's asleep, so I get to have this ice cream all to myself.

Sarah McCammon
This episode was recorded at 12:43 p.m. eastern time on Tuesday, July 2, 2024.

Rebecca
Things may have changed by the time you hear this.

Enjoy the show.

Sarah McCammon
So relatable for anybody who has kids, right?

Domenico Montanaro
You better not ding the bowl too loudly before they get up and they're.

Sarah McCammon
Like, mom, just hide anything you don't want to share in the vegetable drawer. Although that doesn't work with ice cream.

Nina Totenberg
No.

Sarah McCammon
Hey, there. It's the NPR Politics podcast. I'm Sarah McCammon. I cover the presidential campaign.

Domenico Montanaro
I'm Domenico Montanaro, senior political editor and correspondent.

Nina Totenberg
I'm Nina Totenberg. I cover the Supreme Court.

Sarah McCammon
And speaking of the Supreme Court, the court's term is over. All of the decisions are out. And it was one for the history books. Nina, I want to start with you with your big picture thoughts on what this term was like and how it might compare to the few others you've covered.

Nina Totenberg
I actually dont remember a court this thunderously newsmaking.

There were, by the time we reached the last ten days of court, there were ten major decisions outstanding. And even the year when the court reversed Roe v. Wade and made regulation of guns all but impossible, even that term was in some senses, less important than this term, where the court made it very hard to regulate everything from industries to, you know, work sites and at the same time broaden presidential powers enormously in a way that no president had ever tried to broaden them before.

Sarah McCammon
And at the same time, in the midst of these really crucial cases, there has been a slew of controversies around ethics involving the justices spouses and their politics, as well as unreported gifts to justices. The court is under a lot of scrutiny right now, but obviously very powerful. How does that factor into the way that these decisions are being received?

Nina Totenberg
Well, I know how they're being received, which is by people who don't like the outcome not well. But the problem for the court is that it really doesn't want to be viewed as political. And the chief justice has tried very hard to maintain that line. If at the same time, you have big republican donors giving lots of gifts to people that were undisclosed, and at the same time, neither of the justices, neither Justice Thomas, whose wife was involved in trying to actually submit alternate elector slates, Justice Thomas didn't recuse himself and Justice Alito didn't recuse himself. Frankly, I think the argument for Thomas recusing himself was much stronger than Alito's but that's neither here nor there.

Suddenly the court is a political issue. I can't tell you the number of people yesterday I talked to who said Biden needs to run on the court.

Sarah McCammon
Isn't it harder to do with these cases? I mean, they're so important, as you say, but they're not these sort of easily digestible issues for the most part, like abortion and guns, which people understand immediately.

Nina Totenberg
I think that's true. But they've got abortion and guns, too, right?

Sarah McCammon
True.

Nina Totenberg
True.

Sarah McCammon
It's all there.

Domenico Montanaro
Well, I mean, obviously, though, Democrats are really rethinking sort of how to run and how to make the supreme Court an actual issue. We heard President Biden talking yesterday, and I thought his remarks were kind of interesting.

Joe Biden
This nation was founded on the principle that there are no kings in America.

Each, each of us is equal before the law.

No one, no one is above the law, not even the president of the United States.

With today's Supreme Court decision on presidential immunity, that fundamentally changed.

Sarah McCammon
Fundamentally changed. I mean, what do you make of that? Domenico?

Domenico Montanaro
Yeah, and this is not the first time that Biden or a democratic president has singled out the supreme Court. But it really, the Supreme Court has never really been a voting issue for Democrats the way it's been a voting issue for Republicans. I mean, for 50, 60 years. I mean, we're on the, at the 60th anniversary of the Civil Rights act being passed. And, you know, it wasn't just Roe and abortion. Cultural issues have been a reason why a lot of Republicans and conservative activists have for a long time, really started to organize around the kinds of justices you want to have on the Supreme Court, you know, principally to try to overturn Roe because they didn't like it. And now you could argue that all of that work, all of that political activism has paid off. And they were ready for the moment when it came.

Sarah McCammon
But what's the chicken and what's the egg here? I mean, was activism around abortion the reason that these conservative justices were in place to make these decisions, or was that sort of the organizing issue all along?

Nina Totenberg
For years, I would write pieces saying, you know, maybe this year the court will be an issue in the presidential election. It never was until 2016. And the polling data afterwards showed that the anti abortion groups really turned out for Trump. It made the difference in some key states.

And this year, I think there is a chance that the court, as an issue overturning Roe, giving the president quite unlimited and sweeping powers.

Those could be issues in which the Democrats are able to drive the left to say, okay, I don't particularly love Biden, but I'm scared of the Supreme Court. I'm going to go vote.

Domenico Montanaro
It's all part of it. Right. I think that when you think about what Biden is running on, what the Democrats are running on January 6, abortion rights, those happen to be two of the biggest, most controversial things that this Supreme Court has done. And this is frankly, the first presidential election since the Dobbs decision, which overturned Roe, super unpopular. And, you know, that's a big thing that they're organizing around. And it happens to be a couple of the few areas where Biden is trusted more than Trump on all of the things that they say will impact their vote the most, whether it's the economy, foreign policy, et cetera. Trump is usually trusted more, but not on democracy, not on abortion rights.

Sarah McCammon
Yeah. And to Nina's point, while abortion motivates a lot of voters who are key constituencies for Democrats, it is not the issue that's at the top of people's list.

Domenico Montanaro
Yeah. But again, you need everybody to show up as part of your coalition. And, you know, Biden has been struggling, obviously, in the polls with a lot of different groups. And I think that this is a really key thing, this decision and that speech that he made yesterday in trying to frame the election and frame the stakes of what's at stake here, to say, hey, you know, maybe you're not totally thrilled with me, Joe Biden, but look at what the alternative is, and look at how the Supreme Court may have just empowered somebody who is saying that he would seek retribution against his political enemies. And now the Supreme Court is essentially saying that he has all of the power to do that, even if it's through otherwise illegal means.

Nina Totenberg
It is also a good tool to get out the left because all you have to say is, look, a couple of these justices are in their mid or late seventies, and you could have two vacancies or three vacancies. You could have a court that's sort of all like Clarence Thomas and Neil Gorsuch and Sam Alito, the hardest right members of the court, they could really have the upper hand.

Domenico Montanaro
And Nina, you know better than anybody, but with Thomas and Alito, you know, Thomas being 76, Alito being 74 years old, if Donald Trump were to win again and were to get back in the White House and was able to appoint replacements for even just them, not changing the conservative ideological picture at the court, the majority at the court right now, if he appointed somebody in their fifties to replace them, that would definitely set the left back 20 years or so.

Nina Totenberg
Right. But I do think it's a good motivator for the left, which is not very happy. The young left particularly is not very happy with this president, but this could be a motivator for them.

Sarah McCammon
We're going to take a quick break, and when we get back, we'll talk about some of the cases we didn't get a chance to talk about on the podcast.

And we're back. Nina, I want to focus on a case that is going to reshape federal agencies ability to do one of the big things they do, which is regulate just about anything. It has to do with something that is called the Chevron deference.

What is that?

Nina Totenberg
So 40 years ago, the Supreme Court was facing a problem.

It kept getting asked for a little, you know, to decide all kinds of regulations, whether they were appropriate or not, based on the science, based on data that they really didnt have, and they were tired of it, and they came up with this. The case was called Chevron, and the doctrine is called Chevron deference. And what it said was, if an agency sees a statute that it has to interpret and the statute is ambiguous, the agency does its best relying on all its expertise. And we should defer to the agencys findings of what is the appropriate response under this law.

Sarah McCammon
Because they have the experts?

Nina Totenberg
Yes, because they have the experts, and we dont, and lower court judges certainly dont. It went on for 40 years. And I have to say the conservatives signed onto this, too. In fact, Justice Scalia, who wouldwho at the time was a federal judge, Butand would go to the Supreme Court, I think two years later, he embraced that idea. Hed been on the DC circuit, which handles a huge number of administrative law cases, and he felt at the time that judges should not be sort of monitoring every jot and tittle of what the agencies do, that it was an impossible thing for judges to do, that the agencies had the expertise. He came, I think, to partially at least regret that view. But that was his view back then.

Well, over the years, I would say that a lot of people who hate regulatory agencies and think that they interfere with their ability to make money and to be efficient and all kinds of things like that, they got what they wanted. And interestingly, at the oral argument, Justice Kavanaugh said to the governments advocate, he said, isnt it our job to make sure that the government doesnt act like a king? This was not the presidential powers case. This was deregulation.

And that was his view of the regulatory administrative state, that it was allowing the president through his agencies to act like a king. And the court said, sorry, were getting rid of Chevron deference. Now we dont really know whats going to replace it. Maybe nothing. I mean, the court has been extraordinary in the way it has dealt with the EPA, for example, in water issues and air quality issues. It has not even waited for lower courts to act before ruling on some of these cases, which is really pretty amazing.

Domenico Montanaro
Its so interesting for a Supreme Court that has, you know, move to give more presidential power. This in a lot of ways hobbles the presidency in trying to be able to figure out regulations, a regulatory scheme throughout the country. I guess unless you're a conservative and you want to get rid of a lot of regulations, it's not that easy.

Nina Totenberg
Always to get rid of established regulations. And there's one other thing the court did. I mean, it's conceivable that if Trump's elected, he'll be very frustrated for a while because it takes time to get rid of regulations. And one other thing, there was a little noticed opinion on the courts last day when they did all this other very big stuff about the president in which it said that from here on out, the statute of limitations for challenging a final rule of an agency was six years.

But the court said if you are affected later than that and can show that you couldnt have challenged it earlier, then you have an unlimited amount of time to challenge a regulation. So that arguably would mean that long established rules could be challenged by groups that disagreed back when and now will challenge these things again. You can always find a plaintiff. You can, you know, that's not hard. You can always find somebody and just say, well, you know, we failed before, but now we've got the court we like, we can try again, and weve got a new plaintiff.

Sarah McCammon
You mentioned, Nina, that this case was sort of little noticed.

What else do you think has been undercover this term?

Nina Totenberg
I think the whole idea of, you know, conservatives in modern times anyway, have fought very hard against the so called administrative state, and they won a series of victories abolishing Chevron deference, making it impossible for the securities and Exchange Commission to enforce civil penalties against bad actors without going to court. They can't do it with administrative law judges and the case that extends the statute of limitations for challenging regulations. So those three posts of a three legged stool will really change the landscape of regulatory law for probably the rest of my life and maybe even yours, Sarah, and youre a lot younger.

Sarah McCammon
We are going to leave it there for today. I'm Sarah McCammon, I cover the presidential campaign.

Domenico Montanaro
I'm Domenico Montanaro, senior political editor and correspondent.

Nina Totenberg
And I'm Nina Totenberg, and I cover the Supreme Court.

Sarah McCammon
Thank you for listening to the NPR Politics podcast.