Llewellyn King: Scotus mandates confusion, intense judicial power; myths about ‘faceless bureaucrats
Buildings in Washington, D.C., housing federal agencies.
WEST WARWICK, R.I.
Myths are powerful things. So powerful that one has been endorsed by the U.S. Supreme Court and now has the federal government by the throat.
Its effects will be far-reaching and, at times, disastrous and dangerous. Although a conservative favorite, it will hurt business, in some cases, severely.
The myth is that the government is dominated by “faceless, unelected bureaucrats” with an agenda of their own. These bureaucrats, according to myth, are out to frustrate the will of Congress, avoid the courts and ignore their political masters.
In striking down the Chevron deference on June 28 – the actual case was Loper Bright Enterprises v. Raimondo — the Supreme Court sided with critics of the bureaucracy, ending what has been an operational reality for 40 years.
The Chevron deference is a Reagan-area, bipartisan accommodation which recognized that when Congress makes laws in broad strokes and big declarations of intent, the intent often requires refinement of minute scientific detail, like parts per billion of carcinogens allowed in drinking water.
Under the Chevron deference, when Congress had been sloppy, or too general, in its legislation writing, the agencies were empowered to interpret the law and — with public and stakeholder input in the form of hearings and comment periods — make rules.
It is the crux of the administrative state. If those rules were seen to be “reasonable” they couldn’t be litigated: They got “deference.” Although they could be challenged, the implied immunity of deference was mostly honored.
Clinton Vince, who heads the U.S. energy practice at Dentons, the world’s largest law firm, told me that the Supreme Court has upheld Chevron 70 times and that it has been cited in cases 18,000 times. He was speaking on my PBS television program, “White House Chronicle.”
Now, many of the agency decisions, which affect everything from drugs and medical products’ safety to the protection of human health and the environment, to workplace safety, to aviation safety and to the supply of electricity will be made in myriads of court cases.
Vince said that while reasonable people will disagree on the extent of the national disruption, “I believe that there will be an avalanche of litigation by affected stakeholders of different ideologies and that an entirely different paradigm of agency regulation will occur when the courts, rather than the agencies, will be the dominant decision makers,” he said.
Under Chevron, the courts would write the fine print (promulgate is the term used) that Congress didn’t or was unqualified to define in its legislation.
This fine print, this rendition of what Congress intended, was implemented and seldom challenged in the courts because the understanding embodied in Chevron was that if the rules were reasonable the courts would stand back.
Conservative argument postulated that this rule-making in such areas as the environment, energy, health and labor favored the liberal biases of the permanent bureaucracy.
Charles Bayless, who has been president of two investor-owned electric utilities, in Arizona and Illinois, and of the West Virginia University Institute of Technology, and who has been a party to the Federal Energy Regulatory Commission rule-makings, told me he fears widespread chaos, jammed courts and extensive “forum shopping.”
“Each side will find very liberal and very conservative circuits and find a plaintiff in that jurisdiction. As the judges cannot understand the science, the outcome is likely preordained,” Bayless said.
“Thus, the appeals courts will be jammed with appeals from jurisdictions with biased judges writing opinions where neither they nor the jury understand the science,” he said.
A judge in, say, Wyoming could be asked in one submission to rule on the safety — yes, the safety — of a treatment for malaria and in another on the allowable radioactive releases from a nuclear reactor. This is a recipe for confusion and bad law, which will affect business and the public in deleterious ways.
As someone who covered Washington for 50 years, I have to say that the bureaucracy gets a bad rap. It isn’t monolithic — as the word implies — and is made up of men and women, some of whom (as in any other large group) may be biased and unfit for what they do.
But it also has a huge number of hardworking, ordinary Americans. This is particularly so in agencies, such as the Food and Drug Administration and the Federal Energy Regulatory Commission, which administer technologically and scientifically based law. I call them the “hard” agencies because they rely on scientific and engineering expertise in their operation.
It is pure myth that they constitute a swamp or that they have pre-set agendas. Oh, and they do have faces.
Llewellyn King is executive producer and host of White House Chronicle, on PBS. His email is llewellynking1@gmail.com, and he’s based in Rhode Island.
David Warsh: The far right's successful fifty-year campaign to pack the Supreme Court
Better when empty? The interior of the U.S. Supreme Court.
— Photo Phil Roeder
SOMERVILLE, Mass.
It was the summer of 2005. George W. Bush had been re-elected president the autumn before. He possessed political capital, he exulted, and intended to use it. His inaugural address implicitly defended his invasions of Afghanistan and Iraq, and, without mentioning his embrace of NATO expansion, went further still: “[I]t is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.”
A popular uprising in Lebanon soon boiled over, was dubbed “the Cedar Revolution,” Syria agreed to end its thirty-year occupation of southern portion of the country, and Newsweek asked, on its cover, “Was Bush Right?”
But the war in Iraq remained bogged down. Secretary of State Condoleezza Rice seemed to replace Vice President Dick Cheney as Bush’s closest foreign-policy adviser. The president’s major domestic initiative, a plan to privatize the Social Security System, on which Bush had campaigned since 1978, was abandoned. And in August, Hurricane Katrina flooded and flattened New Orleans.
Bush focused on the Supreme Court.
Sandra Day O’Connor announced her retirement a few months before. Eager to nominate the nation’s first Hispanic Supreme Court justice, Bush’s first choice was his friend and former White House counsel, Atty. Gen. Alberto Gonzales. Objections to his candidacy were raised, from anti-abortion conservatives in particular. So in July Bush nominated federal Appeals Court Judge John Roberts instead.
Within weeks, Chief Justice William Rehnquist died, after a lengthy battle with throat cancer. Bush re-nominated Roberts, this time to replace the chief, and to succeed O’Connor, he nominated another old friend, Harriet Miers, a corporate lawyer from Dallas, who had replaced Gonzalez as White House counsel. She was widely criticized for lack of judicial experience.
So, despite his determination to nominate a woman, Bush chose Samuel Alito instead.
In the 2008 presidential campaign, Barack Obama defeated John McCain. The next April, David Souter announced his retirement from the high court and Obama nominated federal Appeals Court Judge Sonia Sotomayor to succeed him. She was confirmed in August. Associate Justice John Paul Stevens retired the year after that, and though Obama was offered bipartisan support for the candidacy of federal prosecutor Merrick Garland, he nominated former Solicitor General Elena Kagan instead.
After Associate Justice Antonin Scalia died unexpectedly, in February 2016, Obama finally sent Garland’s name to the Senate to succeed Scalia, but even with seven months remaining before the November election, it was too late. Senate Majority Leader Sen. Mitch McConnell (R-Kentucky) refused to act on the nomination, and when Donald Trump was elected, it expired. During his term, Trump nominated Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to replace Scalia, Ruth Bader Ginsburg and Anthony Kennedy. McConnell got all three confirmed by the Senate.
It is not easy to pack the Supreme Court, but, working diligently, over a period of fifty years, a coalition of conservative lawyers, evangelical Christians and Catholic activists, had finally succeeded.
I was reminded of all this when I took down from the shelf The Rise of the Conservative Legal Movement: the Battle for the Control of the Law (Princeton, 2008), by Steven Teles, of Johns Hopkins University. Of particular salience was the early chapter on “The Rise of the Liberal Legal Network,” in which Teles describes as the conjunction of the Supreme Court led by Earl Warren and the development of an extensive supportive structure in law schools during the Rights Revolution of the 1950s and 1960s.
After that, this splendid book describes nearly everything you need to understand about the counter-mobilization that developed in the 1970s and 1980s: the advent of conservative public interest law in the early 1970s (and the early mistakes from which its institutions learned); the origins of the law and economics movement and its institutionalization by Henry Manne; the counter-networking since 1982 of the Federalist Society. There is a lot of history to imbibe in order to understand how the movement .achieved its most cherished goal last week.
On the other hand, if you want a glimpse of where the intermingling of law and economics is headed, read Republic of Beliefs: A New Approach to Law and Economics (Princeton, 2018), by Kaushik Basu, of Cornell University. Basu is a development economist, former chief economist of the World Bank (as were Paul Romer, Joseph Stiglitz and Anne Krueger), and, like them, a theorist; in his case, a student and collaborator of Amartya Sen and Anthony Atkinson. Basu expects focal points, a concept derived from game theory to play a central role in rethinking the relationship between economics and law. (Better, perhaps, to call it the study of interactive decision-making.)
What’s a focal point? You know one when you see one: shared manifestations of a psychological capacity, prevalent among humans, especially those who share common cultural backgrounds, which enables individuals to guess what others are likely to do, when faced with the problem of choosing from one among several possible options. A classic example? The decision whether to drive on the left or the right side of the road.
But that’s story for another day; a project for the next fifty years.
Meanwhile, if you are simply looking for the damaged but still-healthy roots of the mainstream Republican Party, the place to start is with Chief Justice Roberts’s opinion in the cases last week, in which he dissented from the “relentless freedom from doubt” displayed by his colleagues in their majority decisions last week:
The Court’s decision to overrule Roe and Casey {abortion cases} is a serious jolt to the legal system – regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.
George W. Bush’s original two preferences for the high court– Gonzales and Miers – surely would have concurred, had they been nominated and confirmed as associate justices. Roberts, it seems to me, had become the de facto leader of the old version of the Republican Party, U.S. Rep. Liz Cheney (R-Wyoming) its floor leader in Congress. If you want to know what will happen next, bide your time until autumn and carefully sift through the mid-term election results. Then fasten your seat belts for 2024.
David Warsh, a veteran columnist and an economic historian, is proprietor of Somerville-based economicprincipals.com, where this column originated.