The Chevron Case: everything is up for grabs

The catastrophe represented by the Supreme Court’s decision on the Chevron case puts it among the all-time worst decisions of the Roberts Court – and that’s saying a lot. And in the wall-to-wall coverage, I haven’t seen any reporter who’s addressed the real issue. We’re really paying for the non-specialist, inexperienced, election “horse-race” journalists so prevalent in Washington today.

 Those trying to explain the ruling often say the wording in legislation often is “ambiguous" and needs to be interpreted by someone. That isn’t it at all. It isn’t ambiguous. Congress sets broad policy. Everyone is entitled to housing that is “decent, safe, and sanitary.” It’s up to specialists at HUD to decide what that means – or used to be. What construction standards must be followed. How many lights. Maintenance standards. Garbage pickup. So, who should do that? A GS-15 housing specialist at HUD? Or Sam Alito’s clerk?

 The National Park Service has two conflicting missions: “conserve the scenery and the natural and historic objects and the wild life therein” and…”leave them unimpaired for the enjoyment of future generations.” Conservation. Enjoyment. Leave it alone; let people have fun. Wilderness area/ski lodges. Lawyers, administrators, tourists, ranchers, miners, and advocacy groups have been arguing about those terms for 108 years. So, can a park reintroduce wolves? Ban private vehicles? Lease out historic buildings for conferences and weddings? Allow helicopter tours? Lease NPS land for uranium mining? Clarence, what do you think? Want to take a vacation to check it out?

 Reporters also frequently mention that this decision will affect things like clean air and water. That totally understates it; the decision affects EVERYTHING. Building Boeing jet airplanes. Railcar safety. Air traffic controller training and discipline standards. How many rat hairs are allowed in a jar of peanut butter. How many hours sleep does a pilot need? Can a pilot fly after a drink at dinner? How much restoration does a strip miner have to do? Does an airline have to compensate you if they bump you? Or lose your luggage? How often do dams need to be inspected? How much of what impurities are allowed in drinking water?

 Whatever else can be said about the federal regulatory process, it is methodical, it is transparent, it is step-by-step, and everyone gets a chance to comment.

 Yes, it’s ridiculous that the Court has appointed itself to be the interpreter of air traffic safety, pure food and drug, endangered species, and everything else. Expertise, manpower, lack of accountability, yes, yes, yes. The ability to forum shop to pick a favorable judge, as they did with the abortion pill appeal. All true. But these comments fall so far short of describing the problem.

 Federal rule-making is one of the most complex, rule-bound undertakings known to man. The Administrative Procedures Act. Repeated public notices and comment periods. Publication of intention to write a rule and then solicitation of comments, and then notice of proposed rule-making in the Federal Register. The Freedom of Information Act. Administrative hearings. And once the rule is issued, there’s a huge regulatory record to help people understand, apply, or appeal the rule.

All of that is out the window. In its place? A sort of Star Wars bar scene at the Supreme Court. The Jack Abramoffs of modern day Washington, hanging out at the Supreme Court, new RVs, luxury vacations, rent and tuition payments in tow, awaiting a chance to talk to Alito’s or Thomas’s clerk. Our Supreme Court has distinguished itself for two things: tolerating the lowest ethical standards perhaps ever and an astonishing contempt for old fashioned concepts such as precedent, tradition, judicial restraint, and respect for the legislature.

So with this new power, maybe they hold a hearing, maybe not. Maybe they just issue a decision, maybe they ignore it. If they hold a hearing, some people get to address it, some don’t. Nobody knows why a speaker gets picked. The court might respond and it might not. And they base their decision on …. Whatever.

The damage that will be done by this horrible decision is impossible to calculate.

Leon Reed is a former U.S. Senate aid and a U.S. history teacher living in Gettysburg. He is co-chair of Gettysburg DFA (www.gettysburgdfa.org).