Editor’s note: This post draws directly from the author’s press statement on Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
The American public is lucky to have the federal administrative state. Every day, it protects all of us from harms like heavily polluted air, consistently contaminated drinking water, and dangerous workplaces. It strengthens our democracy. And it ensures a fairer, healthier, and more inclusive economy. The good news is that today’s self-aggrandizing U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce does not change that. And that is because it cannot change that.
The reality is that the attack on Chevron deference was always built on an illusion — the illusion that federal agencies are somehow not abiding by their statutory authority in carrying out their public interest missions. That illusion may be useful for advancing a certain political ideology, but it in no way captures the reality of how agencies do their work.
Here are the facts: Since the Founding, executive branch agencies have generally been faithful in implementing federal laws consistent with the instructions that Congress has provided them. In doing so, they have drawn upon their in-house expertise to build effective policies that are informed by the best available evidence and the input agencies receive from interested stakeholders. And agencies would have continued to do just this regardless of how the Supreme Court ruled today.
True, today’s decision invites conservative judges who refuse to respect the limits the Constitution places on them to more aggressively second guess agency interpretations of their own statutes. And worse still, whatever chaos ensues will be entirely of the conservative majority’s own making, as it rests on self-serving legal formalism and a deliberate misreading of the historical antecedents of the Administrative Procedure Act.
But agencies have always labored under the threat of judges determined to make policy from the bench. The best way for our administrative state to respond to today’s decision is to keep marching forward and doing the people’s business by working with the public to help solve our nation’s problems and address the hazards and challenges our country faces.
Over the next few months, we will see whether and to what extent judges abuse today’s decision. That will be the real measure of its impact. We stand ready to educate the public about such abuses and to work with them through our elected officials to mount an appropriate response.