Breathe Polluted Air! Drink Contaminated Water! It’s the Law…and (Unlike Trump) You Have No Immunity.
Almost lost in the haze of the recent raft of precedent-shattering Supreme Court decisions (including Trump v United States, in which the conservative majority— predictably—shimmied past the problem to Donald Trump’s benefit) were two decisions involving the “administrative state” that might end up directly touching more Americans’ lives than a second Trump term.
As to immunity, the six conservatives did what all but the most naïve Court watchers would have predicted. They made no definitive judgments but rather kicked the can back up the road to district court. This continuation of their commitment to run out the clock left the nation exactly where it was before—if Trump wins in November, he goes free, and if he loses, he will likely be convicted. To justify remanding the case, John Roberts, in his majority opinion was forced to play dumb, denying that there was sufficient evidence for them to come to a conclusion and that a “factbound analysis is best performed initially by the District Court.”
Sure.
Of the two administrative state decisions, the first and most important was Relentless, Inc. v Department of Commerce, in which the Court overturned a forty-year precedent set in Chevron v Natural Resources Defense Council. At that point, in 1984, the justices—including six conservatives—ruled unanimously that the judiciary cannot overrule the judgment of a government agency’s “experts” in interpreting a law that might have been vaguely written. Without such a shield, the government had argued, the regulatory process would grind to a halt and legislation such as the Clean Air Act and agencies such as the Food and Drug Administration would become meaningless. The decision was widely praised and subsequent administrations, both Republican and Democrat, employed the ruling to block legal attacks on regulatory enforcement.
The Relentless suite was brought by the owners of two fishing boats, who claimed that under federal regulations enacted to prevent overfishing, they were required to allow inspectors to be on board when they sailed. Their problem was that agency also required them, the owners, to foot the bill and pay, at least in part, the salary of the man or woman who could fine them or even put them out of business. On a bad day, this could mean that the proceeds of the entire catch could end up in the inspector’s pocket.
The owners failed in both district and circuit court, both of which ruled that the law’s ambiguity on industry-paid monitors allowed for agency interpretation under Chevron deference.
The Supreme Court disagreed. In an ideologically split 6-3 decision, the Court sided with the boat owners. Chief Justice Roberts wrote, “The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
The scope of this decision is immense. It is the courts that will now decide whether a regulatory law is vaguely worded or ambiguous, and if so, to determine, despite lacking knowledge of the underlying issue, what the law actually empowers government to do. There is no agency that will not be touched. Thus, every action, even those brought for political reasons or by obvious malcontents, will be forced to make its way up through the judiciary to a Supreme Court that might easily rule that industry has a right to befoul the water, pollute the air, include carcinogenic ingredients in food or deposit them as waste in the soil, market drugs with devastating side-effects, or any number of other antisocial actions undertaken to improve the bottom line.
All this in the name of freedom.
(The second case was Corner Post v Board of Governors of the Federal Reserve System, in which the Court ruled that the six-year statute of limitations for filing lawsuits challenging a regulation can only begin when a company begins in business rather than when the regulation is first put into effect. This means that companies can simply begin doing business under a series of new identities and thus extend their ability to sue indefinitely.)
What conservatives pretend not to understand is that all these government programs and agencies that they loathe so much were established because the private sector had failed. Social Security was not enacted because businesses adequately provided for former employees; Medicare did not become law because insurance companies were willing to limit their profits to ensure that the aged could afford to go to a doctor; the EPA was not established because industries near Cleveland took sufficient measures on their own to keep the Cuyahoga River from catching on fire sixteen times.
Without regulatory enforcement, the government must rely on businesses and even individuals to behave as “good citizens,” occasionally putting aside petty parochial interests for the benefit of society as a whole.
Just as they have always done when there was a buck to be made.
But the liberals get it wrong too. Any government agency, no matter how noble the reasons for its establishment, will become victim to the bureaucratic imperative. And so, the public can be charged thousands for a toilet purchased by the Pentagon, be frustrated to near madness trying to get a straight answer from the IRS, or wait interminably after questioning a Medicare charge. In this case, it is absolutely unconscionable to ask small, commercial fishermen, who often toil under soul-crushing conditions to eke out a subsistence living, to pay the salaries of government inspectors who will likely make a very hard life even harder.
The only way to make the regulatory process work is to correct each swing of the pendulum. Government is the only power strong enough to deter private industry so the need for intelligent regulation is paramount. But it is also necessary that, once an agency or regulatory process is initiated, that it be periodically revisited and re-analyzed to determine whether it continues to be implemented in the manner in which it was designed, and even whether or not specific regulation continues to be necessary.
Still, requiring continued oversight on a government function that is so vital to the health and well-being of Americans is hardly the same as taking the handcuffs off those who would abuse the law and put others at risk for their own aggrandizement.
Come to think of it, that applies to Trump as well.