Tuesday, February 20, 2024

I’ve been thinking about change and how it is often gradual, but also inevitable. This is true for relationships, careers, and yes, even matters of political persuasion and policy. Let’s jump back into the courtroom at SCOTUS and look at an example.

Arguments for case number one, Relentless Inc., wrap up. We aren’t certain whether Loper Bright Enterprises will be called immediately next, or if there will be a break first. Some of us on the tiny wooden chairs in the alcove are really hoping for a break, our bodies need to move. Many of the reporters assigned full time to court coverage rise and quickly move out. They’re off to file their story. We stand and stretch a bit but quickly retake our seats as Loper Bright is called. One of the reporters whispers to us on the way by “this next case will be much shorter.” I guess they got enough of the story, but all I can think of is, “you’re going to miss the rest?”

As we’ve mentioned in our coverage, Justice Jackson recused due to her participation at the lower level in this case. For me, the arguments brought by Paul Clement for the petitioners as well as the counterarguments brought by Solicitor General Prelogar follow a line more clearly than in the first case, perhaps because this set is being argued from a more practical standpoint. I thought great points were made regarding Congress also relying on the Chevron doctrine when writing laws since 1984, as well as the notion that if Congress themselves found Chevron to be problematic, they could get rid of it tomorrow with simple legislation.

So here we get to the prevailing views of Chevron as one of those gradually changing things. Currently, it tends to be the more conservative approach to want to limit the degree to which the interpretations from the executive branch are upheld by courts. The argument goes that too many things and of too great of an importance are being decided by unelected bureaucrats. The standard notion here is that Congress is more immediately accountable to the voters and is designated in our system as the law-making body. The argument follows that Congressional power has been soaked up, taken over, or even hoarded by the administrators in the executive branch. Here it is believed that wild swings in policy from presidential administration to administration regarding enforcement or definitions are too unpredictable for citizens and businesses to effectively rely upon. The argument is that chaos ensues.

The counterargument holds that Congress would be functionally incapable of the constant modernization of laws that would be required without Chevron deference. As was noted especially during the Loper Bright argument, things change – sometimes rapidly. It would simply be implausible and impractical for Congress to constantly look back, update and reharmonize every law for every major change. It’s a model that isn’t practically functional, even if it is philosophically sound. The argument is that chaos would ensue, by virtue of elderly, antiquated and eventually unresponsive laws outdated by decades of routine progress and change.

Some experts believe that today’s notoriously conservative court’s ruling on these two cases is a foregone conclusion. However, I’m not certain. Why? Let’s check in with one of the most revered conservative minds of the court’s history, Justice Scalia. Back in 1989 he was a staunch proponent of adherence to Chevron deference. It was a popular conservative mindset then. Why? Because at that time many felt that courts had become too activist. Without the structure of doctrines like the Chevron test, it was believed that courts were deciding policy and law in a more willy-nilly fashion of preferences, and without the benefit of deep expert analysis. To curb this trend, conservative judges thought it would be less disruptive and would keep things more in order if courts were required to defer to the experts and opinions of the agencies in charge of the regulations themselves. At that time, it was believed that applying Chevron deference would keep the application of laws closer to the original intention of the law. Chevron, it was argued, would be less disruptive to citizens and businesses. Scalia concludes his 1989 remarks by stating that “In the long run, Chevron will endure and be given its full scope” because “it more accurately reflects the reality of government, and thus more adequately serves its needs.”

So, we have arrived at another point on the flat circle that is time. I’m not sure if it’s 180 degrees from our point of beginning, or 360 degrees. What I do know for sure is that the outcomes of these cases are going to directly impact your business life and your personal life.

As I visit with many of you and read your social media posts, it’s evident that a fair number of us are wrapped around some political axels right now. Which is likely appropriate, more or less. Just know that for many of us who have had a few more trips around the sun, we ask you to be patient with us if we aren’t as exercised as you might want us to be on some issues. Because if you’re on this planet long enough, you’ll learn that both bad and good ideas seem to be recycled around and around again. And that sometimes when the music stops, you find yourself on the entirely opposite side of the carousel from which you started. And then the music begins again.

Until next time,

Mary Schuster
Chief Knowledge Officer
October Research, LLC