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After Roe v Wade, Supreme Court overturns another major legal precedent

DANIELLE KURTZLEBEN, HOST:

Two years after overturning Roe v. Wade, the U.S. Supreme Court undid another major legal precedent this week. The Chevron doctrine isn't as well-known, but its reach into the workings of government and the lives of everyday Americans is massive. Thousands of rules and regulations set by federal agencies like the FDA and EPA could now be endangered. Andrew Mergen spent 30 years as an attorney at the Department of Justice Environment and Natural Resources Division. He's now at Harvard Law School. Good morning, Andrew.

ANDREW MERGEN: Good morning, Danielle.

KURTZLEBEN: Now, Chief Justice John Roberts wrote the majority decision here. What was the rationale for this really big move?

MERGEN: Yeah. So Chief Justice Roberts lodges his holding in a couple of thoughts, a couple of doctrines. First, he says that it is emphatically the role of the judiciary of the courts to say what the law is. He says that's been the case since Marbury v. Madison, and that is inherently a judicial function.

And then he says that the Administrative Procedure Act, which is a law that's about 80 years old, goes back to the 1940s and was really a revolutionary piece of legislation in terms of providing for judicial review of agency action - he says that that statute says that the courts shall decide all relevant questions of law. And he says that must mean that there can be no deference to the judgments of administrative agency in the normal course.

This is significant because he lodges his holding in a statutory framework and not a constitutional framework. He doesn't say that the separation of powers prohibits this. He says that the statute says that courts shall say what the law is. And he leaves a little bit of wiggle room for deference to agencies in very specific cases.

KURTZLEBEN: Turning to the dissent in this case, Justice Elena Kagan wrote that Chevron played a fundamental role in, quote, "keeping air and water clean, food and drugs safe and financial markets honest." What does this mean for the day-to-day operations of federal agencies?

MERGEN: Yeah, I think that for in the near-term, agencies are going to be very busy defending regulations. And my former colleagues at the Department of Justice are going to be very busy defending regulations. Justice Roberts says that this holding doesn't apply to past judgments interpreting agencies under Chevron.

But Justice Kagan says in her dissent - and I think she's right - that that's a very cold comfort, that there is an ecosystem of law firms and organizations that will want to challenge these regulations, and they will see this as a green light to do that. So in the near term, a lot of litigation.

I think that the agencies have been preparing for this for a while. So they know how to write rules that will - that are based sort of more on the text and rely less on deference. But the problem, as Justice Kagan indicates, is that there are lots of things that require the expert judgments of the agencies. She focuses on things like, what is a squirrel under the Endangered Species Act?

But there are many other important health issues and FDA regulations that are going to be implicated in this that have previously relied on agency expertise. And the agencies will do their very best to regulate and should do their very best to protect our health and safety under this new regime. But there is no question it is going to be more difficult, especially in the near term.

KURTZLEBEN: Right. And the idea here in things like Justice Elena Kagan's dissent is that the agencies have the resources and the personnel to handle these regulations. So is it realistic to think that courts have the ability to interpret very nitty-gritty scientific rules dealing with things like healthcare, environmental policy or you name it?

MERGEN: Danielle, that's such a good question because I think that's how we ended up with the Chevron doctrine in the first place. This is the difference between, as Justice Kagan puts it, hubris and humility. And the Chevron doctrine is based on the notion that judges don't know everything. They can't know everything. And yet we have people at the FDA, physicians, scientists, engineers at EPA who do understand these regimes. And why wouldn't we defer to their expertise, just like we defer to the expertise of our plumbers or air conditioning fixers or taxicab drivers in our day-to-day life? People know things that we don't know.

KURTZLEBEN: Now, looking forward, will Congress now have to get hyperspecific in the language they use when they write laws that pertain to these agencies?

MERGEN: Yeah, I mean, that's such an important point, as well. We know that Congress, no more than the courts, really lacks a lot of this expertise. I think that they're going to need to be very clear about when they are delegating to agencies' expertise. And I think that Chief Justice Roberts writing for the majority leaves some room for agency deference. As long as Congress is clear - very, very clear that it is specifying that the agencies should deploy their expertise in rulemaking. But this is going to be a new regime. The court has, I think, unnecessarily destabilized the law, and we're all going to have to figure out how to live with it.

KURTZLEBEN: That's Andrew Mergen, professor at Harvard Law School. Thank you so much.

MERGEN: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Danielle Kurtzleben is a political correspondent assigned to NPR's Washington Desk. She appears on NPR shows, writes for the web, and is a regular on The NPR Politics Podcast. She is covering the 2020 presidential election, with particular focuses on on economic policy and gender politics.