Supreme Court Overturns the Chevron Doctrine

From the The Morning Dispatch on The Dispatch

Happy Monday! A man who snuck onto the roof of the Westfalenstadion stadium during a Germany-Denmark soccer game this weekend claimed he simply wanted “to take good photos.”

So that’s why he was dressed in black and wearing a mask to hide his identity!

Quick Hits: Today’s Top Stories

• President Joe Biden and his campaign maintained over the weekend that the 81-year-old commander-in-chief is still capable of challenging former President Donald Trump in November’s election after many of the president’s allies expressed concern following last week’s debate performance. “I get it. I didn’t have a great night [during the debate],” Biden said Saturday at a fundraiser. “But I’m going to be fighting harder.” A growing number of prominent Democratic-adjacent media figures and institutions—including Jon Favreau, Ezra Klein, Thomas Friedman, David Remnick, and the New York Times editorial board—have now called on Biden to step aside, but few Democratic lawmakers have publicly said the same. Several party leaders—including Barack Obama, Bill Clinton, Nancy Pelosi, and Jim Clyburn—acknowledged Biden’s poor performance over the weekend but nevertheless pushed back on the notion he would or should be replaced. A CBS News poll conducted after last week’s debate and published Sunday found that 72 percent of registered voters believe Biden does not have the “mental and cognitive health” to serve as president, and that 72 percent of those same voters—including 46 percent of Democratic voters—believe Biden should not continue his 2024 campaign.

• In a 6-3 decision along ideological lines in Loper Bright Enterprises v. Raimondo, the Supreme Court on Friday overturned the Chevron doctrine, which showed deference to federal agencies adopting their own interpretation of an ambiguous law so long as it was “reasonable” and “permissible.” Chief Justice John Roberts, writing for the majority, called the original Chevron decision “fundamentally misguided.” Meanwhile, the court—in another 6-3 decision on ideological lines—upheld a local Oregon town statute that allowed the municipality to criminalize sleeping outside within city limits with boxes, blankets, or pillows for protection, holding that the ordinance is not a violation of the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

• In Fischer v. United States, also released on Friday, the Supreme Court ruled—in a 6-3 decision that saw Justice Ketanji Brown Jackson join an otherwise conservative majority and Justice Amy Coney Barret join Justices Elena Kagan and Sonia Sotomayor in the dissent—that charging an alleged rioter in the January 6 attack on the Capitol with a federal obstruction charge was an overinterpretation of the law. The Justice Department clarified Friday that the decision will not deter the agency from prosecuting January 6 defendants on other offenses. “The vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision,” U.S. Attorney General Merrick Garland said in a statement Friday. “There are no cases in which the Department charged a January 6 defendant only with the offense at issue in Fischer.”

• A Russian missile strike on Sunday in the southeastern Ukrainian town of Vilniansk killed at least 11 civilians—including two children—and left dozens of others injured. Russian warplanes also bombed civilian facilities in Kharkiv, Ukraine, on Saturday, though no casualties have been reported. Shortly after the Saturday attack, Ukrainian President Volodymyr Zelensky emphasized the need for permission to use U.S. long-range missiles to attack Russian military targets in Russia. “The sooner the world helps us deal with the Russian combat aircraft launching these bombs, the sooner we can strike—justifiably strike—at Russian military infrastructure, military airfields, the closer we will be to peace,” Zelensky said Saturday.

• Israeli Prime Minister Benjamin Netanyahu reiterated his commitment on Sunday to fighting Hamas until the terrorist organization is eliminated, all remaining hostages held in Gaza are returned, and Gaza no longer poses a serious threat to the state of Israel. “To whoever doubts the achieving of these goals, I reiterate: There is no substitute for victory,” Netanyahu said. “We will not end the war until we achieve all of these goals.” Meanwhile, Biden administration negotiators reportedly reworded parts of its proposed Israel-Hamas ceasefire deal in hopes it would compel both sides towards an agreement—a three-phase plan that would secure the release of the remaining hostages to eventually secure a long-term ceasefire.

• A series of suicide bombings in northeastern Nigeria on Saturday afternoon left at least 18 people dead and dozens more injured. The attackers were reportedly three women who separately targeted a wedding, a funeral, and a hospital. While no organization has yet claimed responsibility for the attack, the region has been ravaged in recent years by Boko Haram, a jihadist terror group.

• Marine Le Pen’s National Rally party looked set to make significant gains in the first round of French parliamentary elections on Sunday, according to exit polls, potentially becoming the largest party in the French National Assembly and marking a defeat for French President Emmanuel Macron, who called the election to forestall a far-right victory. An alliance of left-wing parties followed the National Rally, and Macron’s Together parliamentary alliance seemed likely to be the third largest grouping—though none of the party alliances seemed to have achieved an outright majority of seats on Sunday. There will be a second-round vote next Sunday in districts where candidates did not receive a majority of the votes yesterday, which could produce a parliamentary majority for Le Pen’s party and allow it to form a government.

• NASA announced Friday that two astronauts—Barry “Butch” Wilmore and Sunita Williams—will see their stay at the International Space Station (ISS) extended further as engineers continue to test the safety of Boeing’s Starliner spacecraft. The astronauts arrived at the ISS on Starliner’s first crewed voyage earlier this month and were expected to return roughly a week after arrival. However, while docking, Starliner experienced helium leaks and thruster problems, delaying the return to Earth. NASA has yet to schedule an official return date for Starliner and the two astronauts.

SCOTUS Sets Limits on Executive Power

The Supreme Court called our bluff. Last week, we wrote to you that, “if the justices push the season into July, you may find your TMD team protesting the schedule on the steps of the Supreme Court.”

The term has indeed extended into July, and needless to say, we’re not pacing in front of the Supreme Court wearing a sandwich board.

A July hand-down day is a rarity for Supreme Court justices, who release decisions as they come to them and have almost always exhausted their list of pending cases by the end of June. But just because they ran out of time last week doesn’t mean they weren’t busy.

Indeed, the high court released some of its most consequential decisions of the term on Wednesday, Thursday, and Friday—overturning 40 years of precedent around judicial deference to executive agencies and ruling on such hot-button issues as abortion policy, social media censorship, and the legality of some elements of the January 6 prosecutions. Though the court is charting a slightly more ideological path in this term than the last, it has nonetheless avoided the kind of rulings that would send shockwaves through the country and frequently moved decision-making power back to its constitutionally mandated home.

In one of the most anticipated cases of the term, the Supreme Court on Friday overturned the so-called Chevron doctrine. When it was decided in 1984, Chevron v. Natural Resource Defense Council was no blockbuster ruling. The court simply sided with the Reagan administration—and, as it happens, Justice Neil Gorsuch’s mother, former administrator of the Environmental Protection Agency (EPA)—in its interpretation of the Clean Air Act that allowed the agency to cut some emissions regulations.

But the decision eventually became a cornerstone ruling for interpreting administrative law, cited as legal precedent in some 18,000 cases across the federal judicial system. When a federal agency’s interpretation of the law was in dispute, Courts looked to the Chevron decision for its two-step test: Is Congress’ intent clear? If not, is the executive interpretation reasonable? If it was, the courts would defer to the agency’s interpretation.

No longer. As Chief Justice John Roberts—joined by the five other conservative justices—wrote in the majority opinion:

The image of the chief justice breakdancing is worth the price of admission in our opinion, but the ruling in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce are also deeply significant. The two cases with almost identical facts, decided together, concerned the interpretation of a National Marine Fisheries Service rule requiring fishermen to assume payment of monitors who collected data on overfishing, which two fishing companies contested.

The court held that under the 1946 Administrative Procedure Act (APA), a law that directs both administrative agencies and the courts on matters of interpreting administrative law, courts “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” Roberts wrote. “Careful attention to the judgment of the Executive Branch may help inform that inquiry. … But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

In short, when a regulated actor and the agency doing the regulating disagree, the tie goes to the court to work out—rather than almost automatically going to the federal agency. “Chevron deference is actually acknowledging that Congress cannot take every single situation into account when it makes legislation,” our own Sarah Isgur explained on Advisory Opinions on Friday. “So when there’s a question or a gap in a totally acceptable piece of congressional legislation, who gets to decide what happens then? Is it the executive branch charged with enforcing that statute that gets to define the scope of its own power? Or is it the courts?” Constitutionally, Sarah said, it’s the courts’ role.

Even if the decision is legally significant, it’s not clear what effect it will have on administrative law in practice. Justice Elena Kagan, who penned the dissent, predicted disaster. “In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law,” she wrote. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”

But the new, post-Chevron standard will still only be applied if someone, presumably an organization or company being regulated, sues to challenge an agency’s interpretation. Plus, the Supreme Court hasn’t used Chevron deference to justify a ruling—even when it might apply—since 2016. “At this point, all that remains of Chevron is a decaying husk with bold pretensions,” the chief justice wrote.

The ruling could curtail some of the swings from administration to administration as agencies change interpretations to match their policy goals and ideological priors. But it could also have little effect at all. “I’m not certain we’ll see agencies change their behavior all that much in the near future,” predicted Patrick McLaughlin, senior research fellow and director of policy analytics at the Mercatus Center at George Mason University, who studies regulations and the regulatory process. “Regulators can still propose and finalize new rules the same way they always have. They may not plan to rely on Chevron deference anymore, but they have many other ways to justify making a new regulation. Regardless, in the post-Chevron world, some subset of these new rules might be susceptible to legal challenges in ways they previously weren’t.”

The Supreme Court also dodged a couple of high-octane culture war questions this week for different reasons. In Moyle v. United States, the court took up the task of deciding whether Idaho’s near-ban on abortion—with an exception for the life of the mother—would be overruled by a federal law requiring hospitals that receive Medicare funds to administer “necessary stabilizing treatment” to patients with “emergency medical conditions,” potentially to include mental health conditions.

The court on Thursday ruled 5-4 to “dismiss as improvidently granted”—a mea culpa from the justices who say they shouldn’t have agreed to hear the case at all—sending the case back to the 9th Circuit Court of Appeals. As John McCormack explains in a piece on the site today:

The court likewise sidestepped another potentially contentious question in Murthy v. Missouri, which revolved around perhaps the best piece of government jargon we’ve yet encountered: government officials and agencies allegedly “jawboning” social media companies or, otherwise put, informal efforts to get the companies to do what they want. Two states—Missouri and Louisiana—sued the Biden administration, suggesting that in 2021, it had put pressure on social media companies to remove posts containing what it considered to be misinformation about the COVID-19 pandemic, the vaccine, and the 2020 election. The plaintiffs alleged the efforts amounted to censorship, arguing White House officials’ efforts were coercive and violated the First Amendment.

But in its 6-3 decision, the court held that the plaintiffs didn’t have the legal right to sue in the first place. The plaintiffs, Justice Amy Coney Barrett wrote for the majority, lacked a “concrete link between their injuries and the defendant’s conduct.” Plus, she said, the remedy the states and social media users were seeking—a further ban on executive agencies and officials communicating with social media companies—wouldn’t keep the companies from enforcing their own content moderation policies that could well have had the same impact as the jawboning.

Justice Samuel Alito penned a fiery dissent from Barrett’s opinion, arguing Murthy could be “one of the most important free speech cases” to reach the Supreme Court “in years.”

“What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive,” Alito wrote. “And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”

Still, the court declining to weigh in on these third-rail issues and handing power back to its constitutionally mandated home—perhaps even including a ruling that cities with laws targeting homeless encampments were not a violation of the Eighth Amendment prohibition on “cruel and unusual punishment”—could be a good thing, argued Yuval Levin, director of social, cultural, and constitutional studies at the American Enterprise Institute. “With its Loper decision, as with some other high-profile cases in recent years, the court is trying to change that pattern” of solving contentious policy disputes through litigation, Levin wrote in the New York Times. “By pushing all the individuals involved to do the particular jobs assigned to them by the Constitution, [the court] is charting a path toward a more legislatively centered political order, in which more decisions about what the law should be are reached by haggling and bargaining rather than by expert fiat or judicial pronouncement.”

In another important case Friday, the court parsed some statutory language to hold, in a 6-3 decision, that people who had allegedly broken into the Capitol during the January 6, 2021, riot there could not be charged under a federal statute—passed after the 2002 Enron accounting scandal—that makes it possible to prosecute someone who “​​obstructs, influences, or impedes any official proceeding, or attempts to do so.”

Roberts might as well have drawn a sentence diagram for how he dissected the statute, ultimately concluding—with Gorsuch, Alito, and Justices Clarence Thomas and Ketanji Brown Jackson joining—that there had to be physical evidence involved to charge someone under this statute. “To prove a violation of Section 1512(c)(2),” Roberts wrote, “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.”

The ruling could affect hundreds of J6 defendants across the country, but it doesn’t automatically render their prosecution moot. “The vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision,” Attorney General Merrick Garland said Friday. “There are no cases in which the Department charged a January 6 defendant only with the offense at issue in Fischer. For the cases affected by today’s decision, the Department will take appropriate steps to comply with the Court’s ruling.”

The spotlight could once again be on efforts to overturn the results of the 2020 election later today, as the court is expected to rule on the question of presidential immunity, with potential implications for former President Donald Trump’s federal prosecution for election interference. As Sarah and David said at the end of Advisory Opinions last week: “Buckle up.”

Worth Your Time

• Politico’s Ryan Lizza sat down with Utah Gov. Spencer Cox—a rare Trump-skeptical Republican who has continued to win elections. “I think it’s fascinating that now we hear words like ‘respect’ and we assume moderation; that conservatism is the same as treating people with disrespect or anger or hate,” Cox said. “That’s fairly new in our lexicon. It’s never been like that before, that we’re cross-associating those things.” On the topic of the upcoming presidential election, Cox did not shy away from the bipartisan age problem. “We all have family members. We see what happens when you get over 80. I don’t think that people over 80 should be running a country. I think that’s a huge mistake. I can’t believe we ended up with these two candidates again.” But despite the gloom, Cox rejected the doom. “Look, Trump was president before—we made it. A lot of people said we couldn’t survive four years of Joe Biden, and here we are. Hasn’t been great. But at the end of the day, we’re resilient people. And we will get through the next four years.”

• In a piece for National Review, Luca Gattoni-Celli argued that the YIMBY (“Yes, In My Backyard”) housing movement is conservative. “Our loudest detractors are antisocial Marxists,” he wrote. “Their chief complaint is that some YIMBYs are conservative. … The truth is, YIMBY is not partisan, and urbanism does not require any notable ideological commitments. However, the YIMBY policy agenda boils down to deregulation. And our vision for neighborhoods with tight communities, abundant starter homes, and thriving young families is small-c conservative, a return to traditional American land use.” What are some policy examples? “The zoning restriction that conservatives should object to most is minimum lot size, which make starter homes financially infeasible for many. Land is expensive, so large lots incentivize relatively larger and more profitable houses. … Conservatives should also be leading the charge against often Kafkaesque permitting. My city’s permitting office performed some kind of archeological review before I could remodel my townhouse’s third-floor bathroom,” he wrote. “The YIMBY movement is an attempt to rebuild the American dream of a comfortable middle-class existence with a stable family life and good friends. I could call that aspiration many things, yet the first term that comes to my mind is ‘conservative.’”

Presented Without Comment

CNN: Democrats Fear Replacement Scenarios as Much as Keeping Biden

Also Presented Without Comment

Politico: [Steve] Bannon Rejects Idea of ‘Retribution’ But Lists Trump Foes to be Investigated

Also Also Presented Without Comment

Bloomberg: U.S. Dismantles Gaza Pier With No Prospect of Bringing It Back

In the Zeitgeist

British bicyclist Mark Cavendish already has many kudos for his bicycling career: He was named “the greatest sprinter in the history of the Tour [de France] and of cycling” by the bicycling marathon’s director in 2021, and, earlier this month, he was knighted in the United Kingdom.

At 39 years old, most bicyclists would be nearing the finish line of their professional bicycling marathon careers. But Cavendish is chasing one final victory in the 2024 Tour de France—which began Saturday. He had a rough stage one of the race and didn’t clinch it in stage 2, but if he wins just one more stage—his 35th—he would rank number one of all time, surpassing renowned Belgian cyclist Eddy Merckx, with whom he is currently tied.

Toeing the Company Line 

• In the newsletters: the Dispatch Politics crew reported on the aftermath of debate night, Nick compared Biden’s debate performance to a classic horror film, Jonah observed that Biden allies can no longer deny the president’s age problem, Chris explored (🔒) the complex process of nominating a candidate other than Biden at the Democratic National Convention, and for Dispatch Faith, Terry Mattingly argued in favor of religious reporting.

• On the podcasts: Sarah was joined by Kevin, Steve, and Megan McArdle to break down Joe Biden’s hard-to-watch debate performance on the Dispatch Podcast roundtable, Sarah and David explained the latest Supreme Court decisions—including the death of the Chevron doctrine—on Advisory Opinions, Jonah ruminated late at night on the solo Remnant, and Victoria interviewed Richard Reeves, president of the American Institute for Boys and Men, on The Skiff (🔒). On today’s episode of The Dispatch Podcast, Jamie interviews former Hillary Clinton aide Philippe Reines about the state of Democratic politics after Thursday’s disastrous debate.

• On the site over the weekend: Alex fact-checked the Trump-Biden debate, Stephanie Murray highlighted the peculiar absence of smartphones and social media from Inside Out 2, and Ben Rolsma reviewed Yuval Levin’s new book, American Covenant.

• On the site today: Ilya Somin explains why he believes nationalism poses a greater threat than wokeism, Tom Joscelyn analyzes Julian Assange’s 2016 election interference in light of his recent plea deal, and John examines the Supreme Court’s ruling on the Emergency Medical Treatment and Active Labor Act and Idaho’s abortion restriction.

Let Us Know

What do you think is the Supreme Court’s most important decision of the term thus far?

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