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What Could Be Worse than the Dobbs Decision?

 

I’ve tried to be a bit more optimistic in my posts of late. I’ve focused on the evidence — of which there’s plenty — that maybe Trump and the Republican party are driving themselves, as opposed to us, off a cliff.

The politics of preserving democracy have indeed been somewhat encouraging, especially when one considers the virtually unbeaten record of Democrats in every election since the fall of Roe v. Wade.

I’d like nothing more than to give up the gloom-and-doom thing on a permanent basis.

But not today.

Today, once again, I have to bum us all out. I have to tell you about one of those boring and esoteric legal issues that tend to slip right by us, but which, in this case, carries a level of threat arguably more alarming even than the tanking of Roe.

Once again, the Supreme Court is up to no good, and it has nothing to do with the criminality of Donald Trump. One of the decisions they’re cooking up for this June could dwarf the Dobbs decision, both in terms of government disruption and the societal damage it could ultimately wreak.

It turns out, Dobbs was just a warmup. For the six Grand Inquisitors on the Court, Dobbs was the repayment of a debt they’ve long owed the religious right, in appreciation for its decades-long commitment to ignorance, bigotry, and blind obedience. The institutional chaos the Court created with that one ruling will be felt for years, maybe decades, and the lives they will have destroyed by then will be unacceptably large.

But abortion isn’t really where their hearts are. They’re more about making the world safe for corporate plunder. And Dobbs was good practice toward that end.

Because now they’re going to pay off another big debt, this time to the corporatist robber barons who own them. The Inquisitors are now within reach of the thing those barons want more than anything, the thing in which they’ve invested billions over many decades, and which is now in their grasp:

They finally get to eviscerate the federal regulatory system.

I know, it seems anticlimactic after such a build-up. I assure you it’s not. SCOTUS just heard the case of Loper Bright Enterprises v. Raimondo — an obscure dispute between the government and a fishing company — whose details are uninteresting, but whose significance is seismic.

Because if — or when — SCOTUS rules the way they’re now expected to, they would overrule the so-called “Chevron deference.” In doing so, they would shift power from the regulators to the regulated — from the government agencies who know and understand the industries they police, to the judges who don’t know anything.

The Chevron deference refers to a SCOTUS decision of forty years ago, that has been a staple of regulatory law ever since. Named for the bad guys in that long-ago case, the decision basically held that if there’s a dispute over how to interpret a particular regulation, judges are required to defer to the experts within the regulatory agency.

Which totally makes sense. These agencies — FDA, EPA, USDA, OSHA, FDIC,  the whole alphabet stew — exist specifically to ride herd over industries not known for their attention to the public interest. If the regulatory agencies are to have any bite, the regulations they write need teeth. 

The people who work for these agencies have deep knowledge of the industries they regulate. They’re the ones who make sure our food is edible, our air is breathable, our roads are drivable, our workplaces don’t kill us, our power stays on in the winter, and our sewage doesn’t seep into our drinking water. They do thankless jobs, underpaid and underappreciated, yet they protect us in countless ways we all take for granted. We would sorely miss them if they weren’t there — or if they were replaced by political hacks.

The agencies they work for are creations of Congress, from back in the days when Congress created things. During the Nixon administration, for example, Congress decided that clean air and water were important enough to our national well-being to establish an Environmental Protection Agency.

Congress did not, however, presume to have the expertise required to work out the details, to figure out just how exactly it should go about protecting the environment. That was left to the Executive Branch, who hired the experts, crafted the rules, and made sure industry complied with those rules.

Once the Chevron deference was established, judges had a clear path for deciding on the meaning of those rules. This worked out just as well for the de-regulators — the industry interests who want the rules loosened — as it did for the regulators. While there has always been plenty of push-and-pull on both sides of any regulatory issue, Chevron brought order and clear precedent to the proceedings.

But this SCOTUS has never met a precedent it didn’t hate, and if the Inquisitors kill Chevron, they’ll open the door to courts insinuating themselves into a policy-making role. Judges who don’t understand the consequences of their rulings — and who may be either sympathetic or beholden to the industry being policed — will be in position to influence policy decisions, a role the Constitution never intended.

Ultimately, these judges may get to decide on the very validity of the regulations in question. And if the experts from the government agency say categorically that an adverse ruling could lead directly to public harm, too bad. The judge doesn’t have to listen.

Once that door is open, thousands of regulations will be challenged by the corporate interests that have always detested them. And those challenges will inevitably result in new laws being written, most likely by legislators who are as ignorant as the judges, and whose political agendas are often at odds with sane public policy.

Unlike Dobbs, which was a bomb dropped on American society, the effects of overturning the Chevron deference will be slower and more insidious. Most of the changes won’t be felt immediately, if at all, by anyone outside the legal community.

But as judges get more partisan, and as state legislators get more involved in changing the rules, the regulatory landscape will gradually shift in favor of polluters, quack doctors, rapacious drug companies, toxic employers, price-gouging utilities, and others whose venality would be given free rein, once they’re rid of the legal strictures that were there to hold them in check.

But the fact that SCOTUS agreed to hear the case in the first place surely means that the fix is in. The Chevron deference is most likely toast.

 

Comments

  1. This seems more incremental than you make it out to be. Republicans have already found ways to chip away at the regulatory framework. One of their favorites seems to be reducing agencies' budgets. Another favorite is appointing leaders who oppose the very existence of the organization they lead (think Betsy De Vos). Granted, it may be a bit easier to undo these things. What Trump did to the CDC is still an issue.

    The FDA can't afford to do the safety testing most people assume that they do. Instead, they rely on the very companies that they are regulating to provide the data they use. If that's not the fox guarding the hen house, I don't know what is. It's no wonder conspiracy theories abound.

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