A legal precedent against expertise

Fourty years ago, at the height of a national groundswell of conservatism, The Supreme Court of the United States issued a six-justice unanimous opinion in what would become the most cited administrative law case of all time: Chevron v. National Resources Defense Council. For a case that would redefine the regulatory framework of the United States for decades to come, the central issue — definitions — was relatively tame..

A 1977 amendment to the Clean Air Act required that states exceeding pollutant limits establish a permit program regulating “stationary sources” of air pollution. The term stationary sources, however, was defined differently by the Carter and Reagan administrations. While the Carter administration interpreted stationary sources as any device in a manufacturing plant that produced pollution, the Reagan administration defined it as the pollution producing plant itself.  In Chevron, the central task was to decide which definition the courts should defer to. 

The Supreme Court upheld the Reagan administration’s definition, reasoning that courts should defer to reasonable agency interpretations when laws are unclear — a policy now known as Chevron deference. With Chevron deference, agencies could use their policy expertise to guide regulation in the United States as needed, and courts were obligated to respect their judgment. In short, there was legal precedent backing the regulatory agencies’ expertise.

Earlier this year, in Loper Bright Enterprises v. Raimondo, the Supreme Court overturned this precedent. In doing so, it undermined the regulatory role of expertise to the most comprehensive extent the United States has ever seen. 

To more clearly understand the potential ramifications of losing Chevron deference, I spoke with Daniel Deacon, an assistant Law School professor who specializes in administrative law. Deacon described the fundamental shift away from agency expertise underpinning the decision. 

“To resolve statutory ambiguities now, courts will be doing that — but using courts’ tools of dictionaries and various canons of statutory interpretation — and agencies’ substantive expertise will play less of a role,” Deacon said.

Loper Bright will also impact policymaking. While courts are usually involved in the “backend” of the policy process — interpreting statutes after Congress has passed them —  Chevron’s overturning also has effects on the “frontend,” or the lawmaking process itself. 

“Congress can’t write laws in a little bit of an ambiguous way, knowing that it effectively delegates the resolution of statutory ambiguities to agencies,” Deacon said. “That sort of delegation to agencies is not possible post-Chevron. It’s really to the extent that Congress continues to be ambiguous; it’s gonna be effectively a delegation to the courts.” 

That ambiguity, however, was crucial. Policymakers are incapable of accounting for all of the details of a very complicated real-world environment. Statutory ambiguity under Chevron created extra space for agencies to act in the best interests of their expertise and in a reasonable interpretation of the statute, even if it didn’t give them the explicit authority to do so. 

Though agency discretion is still supported to some extent — most notably, with Skidmore deference — these changes to the frontend and backend of the regulatory policy-making process underscore the most substantial changes in the legal landscape before and after Chevron.

The full extent to which Loper Bright changes the regulatory framework of the United States remains to be seen. But the Court’s judgment has, at the very least, codified a very dangerous trend into the American legal system: the rise of anti-intellectualism. 

COVID-19 put extreme pressure on experts to reliably guide the public through a novel pandemic, from immunologists’ discussions of herd immunity to economists’ plans to stimulate the economy. Because their policy suggestions were based on nuanced realities that are difficult to communicate to nonexperts, they couldn’t possibly account for or predict all the outcomes of a chaotic global environment. So, when some policy suggestions inevitably failed, it was much easier for people to stop trusting these experts than confront the reality that science is complicated. Americans now trust scientists less than any other time in recent history.

Of course, the COVID-19 pandemic isn’t the sole driving force behind this rise in anti-intellectualism, but it serves to exemplify its rise on two fronts: digitization and politicization.

The digital age has brought about an unprecedented democratization in information. Because information is so readily available, people want to consume it in small chunks, creating a hostile environment for nuanced information that challenges preconceived notions. Populist leaders across the globe have capitalized on this, appealing to “ordinary” people and sold them on the idea that there is an elite ruling class set against them — an elite ruling class that includes the academics and bureaucrats in executive agencies. These leaders have sown distrust between groups of people based on their educational background and have made expertise a partisan issue. 

No more prescient of an example exists than former President Donald Trump. The demagogue — who forced the National Oceanic and Atmospheric Administration to endorse a false Hurricane trajectory — is in large part responsible for supporting and utilizing the anti-vaxxing movement for political gain. But the sentiment goes beyond Donald Trump’s ridiculous antics. In the recent vice presidential debate, vice presidential candidate and campus denigrator J.D. Vance, seen by many as the de facto successor to Trump, consistently capitalized on populist, anti-intellectualist talking points to appeal to audiences at home.

Agencies are now perceived by Republicans to be partisan actors, hell-bent on making administrative decisions that “the people” don’t want. In reality, those agencies are just trying to ensure people are healthy and the environment is kept clean.

It makes sense that there would be growing pains as society learns to grapple with its newfound connectivity. However, the Loper Bright decision has ensured that these temporary growing pains will now become chronic, plaguing the United States for years to come. 

Weakening agency power to interpret statutes and taking strategic ambiguity away from the policymaking process gives agencies less power to act. It is a fundamental step away from trusting executive agencies to carry out the law for the benefit of all — a step that will not be rectified for years to come, if ever. It is also deeply reflective of general American distrust toward institutions. 

Overturning Chevron will only strengthen feelings of animosity toward scientific and policy expertise. Scientific realities are nuanced, and accurate communication of those realities depends on the ability to platform the truth —  not partisan influences or easily digestible headlines. 

Ultimately, the Supreme Court has tossed out any form of judicial humility and moved the regulatory landscape of the United States away from expertise and the nuance that accompanies it. In doing so, it has made regulation more difficult, suffocated policy nuance and disrespected all forms of scientific authority. In the same way we shouldn’t have economists, chemists or doctors holding the gavel, we shouldn’t have judges deciding how to combat inflation, what chemicals are harmful to us or what food we should eat.

Alongside its decision in Loper Bright, the Supreme Court voted to block a Biden administration plan to combat air pollution. Writing for the majority, Justice Neil M. Gorsuch, one of the judges that voted to strike Chevron deference down, mistakenly referred to nitrogen oxide as nitrous oxide, or laughing gas, multiple times. The Supreme Court can afford to make these mistakes from its judicial ivory tower, but once the ramifications of losing Chevron set in, very few Americans will be left laughing. 

Editorial Page Editor Zhane Yamin writes about stuff that matters. Or, at least he thinks that. He can be reached at zhane@umich.edu. 

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