#loper bright

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/11/21/policy-based-evidence/#decisions-decisions

Since Trump hijacked the Supreme Court, his backers have achieved many of their policy priorities: legalizing bribery, formalizing forced birth, and – with the Loper Bright case, neutering the expert agencies that regulate business:

https://jacobin.com/2024/07/scotus-decisions-chevron-immunity-loper

What the Supreme Court began, Elon Musk and Vivek Ramaswamy are now poised to finish, through the "Department of Government Efficiency," a fake agency whose acronym ("DOGE") continues Musk's long-running cryptocurrency memecoin pump-and-dump. The new department is absurd – imagine a department devoted to "efficiency" with two co-equal leaders who are both famously incapable of getting along with anyone – but that doesn't make it any less dangerous.

Expert agencies are often all that stands between us and extreme misadventure, even death. The modern world is full of modern questions, the kinds of questions that require a high degree of expert knowledge to answer, but also the kinds of questions whose answers you'd better get right.

You're not stupid, nor are you foolish. You could go and learn everything you need to know to evaluate the firmware on your antilock brakes and decide whether to trust them. You could figure out how to assess the Common Core curriculum for pedagogical soundness. You could learn the material science needed to evaluate the soundness of the joists that hold the roof up over your head. You could acquire the biology and chemistry chops to decide whether you want to trust produce that's been treated with Monsanto's Roundup pesticides. You could do the same for cell biology, virology, and epidemiology and decide whether to wear a mask and/or get an MRNA vaccine and/or buy a HEPA filter.

You could do any of these. You might even be able to do two or three of them. But you can't do all of them, and that list is just a small slice of all the highly technical questions that stand between you and misery or an early grave. Practically speaking, you aren't going to develop your own robust meatpacking hygiene standards, nor your own water treatment program, nor your own Boeing 737 MAX inspection protocol.

Markets don't solve this either. If they did, we wouldn't have to worry about chunks of Boeing jets falling on our heads. The reason we have agencies like the FDA (and enabling legislation like the Pure Food and Drug Act) is that markets failed to keep people from being murdered by profit-seeking snake-oil salesmen and radium suppository peddlers.

These vital questions need to be answered by experts, but that's easier said than done. After all, experts disagree about this stuff. Shortcuts for evaluating these disagreements ("distrust any expert whose employer has a stake in a technical question") are crude and often lead you astray. If you dismiss any expert employed by a firm that wants to bring a new product to market, you will lose out on the expertise of people who are so legitimately excited about the potential improvements of an idea that they quit their jobs and go to work for whomever has the best chance of realizing a product based on it. Sure, that doctor who works for a company with a new cancer cure might just be shilling for a big bonus – but maybe they joined the company because they have an informed, truthful belief that the new drug might really cure cancer.

[...] The decision could take on new significance in the wake of last week's ruling that overturned the 1984 Chevron decision that had made it easier to uphold regulations across a wide swath of American life. The court also stripped the Securities and Exchange Commission of a major tool to fight securities fraud.

In a dissent joined by her liberal colleagues, Justice Ketanji Brown Jackson wrote, "The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government." Loper Bright is the case that overturned Chevron.

On SEPTEMBER 24th, I'll be speaking IN PERSON at the BOSTON PUBLIC LIBRARY!

Here's a cheap trick: claim that your opponents' goals are so squishy and qualitative that no one will ever be able to say whether they've been succeeded or failed, and then declare that your goals can be evaluated using crisp, objective criteria.

This is the whole project of "economism," the idea that politics, with its emphasis on "fairness" and other intangibles, should be replaced with a mathematical form of economics, where every policy question can be reduced to an equation…and then "solved":

https://pluralistic.net/2023/03/28/imagine-a-horse/#perfectly-spherical-cows-of-uniform-density-on-a-frictionless-plane

Before the rise of economism, it was common to speak of its subjects as "political economy" or even "moral philosophy" (Adam Smith, the godfather of capitalism, considered himself a "moral philosopher"). "Political economy" implicitly recognizes that every policy has squishy, subjective, qualitative dimensions that don't readily boil down to math.

For example, if you're asking about whether people should have the "freedom" to enter into contracts, it might be useful to ask yourself how desperate your "free" subject might be, and whether the entity on the other side of that contract is very powerful. Otherwise you'll get "free contracts" like "I'll sell you my kidneys if you promise to evacuate my kid from the path of this wildfire."

The problem is that power is hard to represent faithfully in quantitative models. This may seem like a good reason to you to be skeptical of modeling, but for economism, it's a reason to pretend that the qualitative doesn't exist. The method is to incinerate those qualitative factors to produce a dubious quantitative residue and do math on that:

https://locusmag.com/2021/05/cory-doctorow-qualia/

Hence the famous Ely Devons quote: "If economists wished to study the horse, they wouldn’t go and look at horses. They’d sit in their studies and say to themselves, ‘What would I do if I were a horse?’"

https://pluralistic.net/2022/10/27/economism/#what-would-i-do-if-i-were-a-horse

The neoliberal revolution was a triumph for economism. Neoliberal theorists like Milton Friedman replaced "political economy" with "law and economics," the idea that we should turn every one of our complicated, nuanced, contingent qualitative goals into a crispy defined "objective" criteria. Friedman and his merry band of Chicago School economists replaced traditional antitrust (which sought to curtail the corrupting power of large corporations) with a theory called "consumer welfare" that used mathematics to decide which monopolies were "efficient" and therefore good (spoiler: monopolists who paid Friedman's pals to do this mathematical analysis always turned out to be running "efficient" monopolies):

https://pluralistic.net/2022/02/20/we-should-not-endure-a-king/

One of Friedman's signal achievements was the theory of "shareholder supremacy." In 1970, the New York Times published Friedman's editorial "The Social Responsibility of Business Is to Increase Its Profits":

https://www.nytimes.com/1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html

In it, Friedman argued that corporate managers had exactly one job: to increase profits for shareholders. All other considerations – improving the community, making workers' lives better, donating to worthy causes or sponsoring a little league team – were out of bounds. Managers who wanted to improve the world should fund their causes out of their paychecks, not the corporate treasury.

Friedman cloaked his hymn to sociopathic greed in the mantle of objectivism. For capitalism to work, corporations have to solve the "principal-agent" problem, the notoriously thorny dilemma created when one person (the principal) asks another person (the agent) to act on their behalf, given the fact that the agent might find a way to line their own pockets at the principal's expense (for example, a restaurant server might get a bigger tip by offering to discount diners' meals).

Any company that is owned by stockholders and managed by a CEO and other top brass has a huge principal-agent problem, and yet, the limited liability, joint-stock company had produced untold riches, and was considered the ideal organization for "capital formation" by Friedman et al. In true economismist form, Friedman treated all the qualitative questions about the duty of a company as noise and edited them out of the equation, leaving behind a single, elegant formulation: "a manager is doing their job if they are trying to make as much money as possible for their shareholders."

Friedman's formulation was a hit. The business community ran wild with it. Investors mistook an editorial in the New York Times for an SEC rulemaking and sued corporate managers on the theory that they had a "fiduciary duty" to "maximize shareholder value" – and what's more, the courts bought it. Slowly and piecemeal at first, but bit by bit, the idea that rapacious greed was a legal obligation turned into an edifice of legal precedent. Business schools taught it, movies were made about it, and even critics absorbed the message, insisting that we needed to "repeal the law" that said that corporations had to elevate profit over all other consideration (not realizing that no such law existed).

Chief Justice John Roberts heralded the significance of one of the biggest cases from last term, Trump v. United States, with the words, “This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and…

Before I dive into a closer look at two thematically linked cases, I want to make something clear: If Chief Justice John Roberts were standing on front of me, on fire, begging me to piss on him to put it out, I would say, no, that's the Court's prerogative, I can't intrude on that.

The two cases are Loper Bright v. Raimondo, and Corner Post v. Federal Reserve, and together they establish the principle that the courts are in charge of federal regulations, not the executive branch and the agencies charged by law with making those regulations, and these regulations may be challenged at any time by anyone, no matter how long those regulations have been in place.

When coupled with the potent and perfected weapon of judge shopping that the right-wing uses with such enthusiasm, the power of democratic Presidents past and present has been crippled. For instance, under Corner Post, there's nothing to stop Judge Kacsmaryk from re-opening the challenge to the mifepristone approval of 2000; after all, the plaintiff organization was not "injured" until the organization came into existence.

Since there is no corresponding lawlessness on the democratic side -- no massive legal movement, no indoctrinated judges, no pattern of behavior, no supermajority on the Supreme Court -- there is no corresponding loss of power to Republican presidents in the future.

Before I go any further, and before we give into despair: What can we do? Unlike the presidential immunity case, this can be resolved with statutory changes. This means that we must make Congress functional again. And that means electing Democratic members of Congress in the House, where a simple majority is sufficient, and electing young Democratic senators who are willing to overturn the filibuster, and then riding them as constituents with the demand that they modify the Administrative Procedures Act and related laws to make clear that technocratic agencies are responsible for technocratic regulations, not judges, and that final rules become genuinely final with the passage of time.

So, onto the cases. It is instructive to note that for all the talk about the grand principles that these cases turn into anarchy, these cases are penny-ante bullshit. That's what the Federalist Society and its associated projects do: They find -- or make up, as in the Colorado gay wedding website case -- some half-ass case and proceed to contort it into a case that attacks a grand principle.

Loper Bright is about federal observers on fishing boats. Under the Magnuson-Stevens Fishery Conservation and Management Act, the National Marine Fisheries Service administers the fisheries in US marine waters in order to ensure that we don't vacuum up every fish and turn the ocean into desert. It's been sort of successful. E.g. the flounder fishery in Alaskan waters is very healthy, but the Grand Banks are sitting at less than 10% of historic catches, IIRC.

Anyway, under the Act, the NMFS has set regulations that (some) fishing boats must carry federal observers, and sets fees to pay for the observers. Loper Bright Enterprises and others don't want to pay the fees, because they have listened to evil advisors. Or, I dunno. Now, granted -- life on a fishing vessel is hard, and the market does not permit fishers to receive fair value for their labor, which is an issue throughout our economy. But we know as clearly as we know anything that without those observers, fishers will vacuum the oceans empty.

But again, who pays?

The Act does not lay any of this out; it delegates authority to the NMFS, which has made regulations to implement the Act's goals of not running out of fish. When Loper Bright et al challenged the fees, they lost in the lower courts, under the doctrine of "Chevron deference". Now, Chevron deference dates from a Reagan-era case, and it says, essentially, that as long as an agency justifies its regulations in a reasonable fashion that's compatible with the law behind the regulation, the courts should defer to the agency, which presumably has experts who have made their careers working in the industry being regulated and therefore know what's possible and what's reasonable. Since judges aren't any of that, it's not a good idea to second-guess those who are.

The decision here says that's bullshit; judges are the only people who can have final say over what a law means and whether a regulation is a reasonable way to achieve it.

It is breathtaking in its arrogance, and in its arrogating of power away from the executive to the judicial.

Fun fact: Justice Roberts speaks of Chevron being decided "by a bare quorum of six Justices". Guess what the margin in this decision is.

Also fun fact: Chevron was decided by a right-wing Court in 1984 when Republicans controlled the executive, and overturned by a right-wing Court in 2024 when Republicans controlled the courts. Yes, this is deeply, fundamentally, partisan. It is impossible to consider this case without considering the politics.

Roberts' opinion anchors its lawlessness in the Administrative Procedures Act, which says that courts will decide questions of law -- which is fair enough, but this case makes it clear that the Court thinks that everything is a question of law. This is why Congress could fix this; all it has to do is put Chevron deference into the APA.

Since as soon as Clinton was elected, the right-wing Court started chipping away at Chevron, Roberts concludes that there has been no "reliance" on Chevron, so there is no reason not to explicitly overrule it. Which is brilliant: All you have to do is hate on something long enough, and the fact that you hate it becomes justification to overturn it. But the fact is that agencies and Congress have been operating under Chevron for 40 years, so this is not a little change, this is a huge change. And, as we'll see, it opens a hunting season on every regulation that will overwhelm the lower courts, or empower courts like the Fifth Circuit to enact the 2025 Project knowing that the Court will not have the ability to respond to every case.

Roberts for six, Kagan for three. Thomas solo concurrence to rant about separation of powers; Gorsuch solo concurrence to attack stare decisis as a principle. There's a reason why Gorsuch -- for all that he is sometimes principled -- is a key member of the anarchist wing of the Court. He would blow up any inconvenient precedent, and do so while proclaiming how principled it is to do so. You know how some left-wing activists fail to achieve anything because nothing is sufficiently principled to satisfy them. That's Gorsuch's relationship to precedent: No precedent is pure enough to survive.

Kagan is, of course, completely persuasive: Courts are not political and do not answer to voters, and Congress does not and cannot give power to the judiciary branch to execute its laws, and agencies have expertise that court do not have. Etc., etc. Any practitioner could write this opinion, as futile as it is.

The separation of powers that the majority invokes here is contrary to our understood theory of government: Instead of Congress binding agencies to law and granting them power to executive, and agency overreach checked by the courts, with the courts prudentially checking themselves and Congress having the power to check and rebalance by rewriting the law, in this case, the Court takes advantage of Congress's inability to act to declare the entire judicial branch unchecked by any prudence.

So every federal regulation is now subject to the whim of any district judge in Texas or Louisiana.

It gets worse.

The statute of limitations for challenging a regulation that has reached the Final Rule stage is six years.

Corner Post throws that out.

Corner Post is about credit card fees. Corner Post is a truck stop in North Dakota, opened in 2018. Credit card companies charge "interchange fees" for moving money from banks to merchants. Those fees were standardized under Dodd-Frank in 2010, which gave the Federal Reserve the authority to cap the fees, which became a final rule in 2011. You already know the critical point: This is an agency action. Under the APA, from the time the rule became final, there was a six-year statute of limitations to challenge it, which expired before Corner Post opened. (Industry groups challenged the regulation at the time, and lost.)

Now, if you're me, you say "Corner Post had fair notice of the business environment it was to operate in, and is presumed to have known that it would be subject to the interchange fees under the final rule". That's how law works. If Corner Post is so successful that it "has paid hundreds of thousands of dollars in interchange fees" in the six years since its opening, the interchange fee rule is not really impeding their business. If it didn't want to pay interchange fees, it didn't have to open. If it didn't like interchange fees, it could lobby Congress or the Federal Reserve to change the rule.

But I am not a Federalist Society judge, and I am not part of a sexumvirate dedicated to granting itself power.

Corner Post joined an industry group that was continuing to challenge the regulation, and claimed that the six-year limit didn't apply to it, because its claim didn't accrue until it paid the first interchange fee.

The Court holds that Corner Post was injured by the rule, and because its injuries were within the six year limit, it has standing to challenge the rule. Barrett for six.

This is a technical decision about when a claim accrues; it is very inside-law. That technical aspect is probably why Barrett wanted to write the opinion, or why Roberts assigned it to her; it would have appealed to her professorial nature.

Kavanaugh has a long solo concurrence reiterating that Corner Post was injured (it's not subject to the rule, the bank and credit card companies are, but it must pay the fees), and a long discourse on the remedy available, arguing that vacatur of the regulation is appropriate. He's writing presumably because some of his colleagues like Gorsuch have been inveighing against nationwide injunctions and overbroad vacaturs.

Jackson has the dissent.

So, Greg, why is this a deal? It's a technical decision about when claims accrue. That's something only lawyers could love, surely? I think you can probably work it out.

If a claim accrues for purposes of challenging a regulation when a newly-created entity is subject to the regulation, then you can challenge any regulation, no matter how old or entrenched in the industry, simply by creating a new entity.

That is, in part, what happened in the mifepristone case: A new "physicians' group" was formed in Amarillo, solely that it could raise a new claim against the FDA's actions (and sue specifically in Amarillo). You could do the same thing with any claim against any regulation. If the petrochemical industry wanted to put lead back in gasoline, it just runs up a new refinery subsidiary that wants to market "no-knock gasoline"; now that subsidiary has been injured by the regulation against lead, so it can sue.

In combination with Loper Bright, that courts need not pay attention to agencies' choices in response to gaps and ambiguities in empowering laws, you now have courts with final authority over anything the federal government has ever done, regardless of the passage of time.