The entire regulatory process of the United States government is about to get upended. Pay close attention and try and follow the bouncing ball and in the process watch conservatives turn on a dime as their ox is gored.
It all starts with Reagan and Gorsuch and Ruth Bader Ginsberg and Chevron, and it ends, ingloriously, with the small and inelegant herring. Try and keep up,
When Ronald Wilson Reagan won the presidency, conservatives viewed the federal bench as the enemy. Twenty years before, federal judges like Frank Minis Johnson from Alabama desegrated the South. Federal judges took over school districts and various municipalities to enforce the law. The federal bench was manned (they were mostly men, except, amongst a few others like Judge Sarah T. Hughes from Texas, which any DeSantis judge under 40 can tell you administered the oath of office to LBJ on Airforce One hours after JFK was killed by LHO) by do good liberals.
Reagan appointed Anne Gorsuch Buford to run the EPA. She had a son named Neil. Maybe you've heard of him. Anyway, the EPA appealed the decision of some liberal do-gooder on the DC bench named Ruth Bader Ginsburg (Maybe you've heard of her) who stopped Gorsuch and Reagan's EPA from relaxing Jimmy Carter era restrictions on power plant emissions. The case was decided 6-0 by the US Supreme Court with Justice John Paul Stevens writing for the majority. By this time the case was called Chevron v. Natural Resources Defense Council. Conservatives wanted agencies and not federal judges to set regulations to enforce federal laws. In this case the EPA was being run by a conservative, so conservatives were pro-agency and anti-judge. Conservatives did not want do-gooders like the notorious RBG overruling agency decisions.
Stephens wrote that the Clean Air Act was ambiguous, and agencies were best equipped, with experts in the field, to enforce ambiguous federal laws. Federal Judges should stay out of agency decisions unless they were "not reasonable". While a victory for Reagan era conservatives, democratic presidents like Clinton and Obama used the decision to empower agencies to further their liberal agendas in enforcing laws that were ambiguous enough to allow the liberal heads of agencies to advance the liberal agenda of the president. It was a nifty piece of legal judo- liberals took a loss and turned it into a win.
Fast forward several decades and now the federal bench is populated by conservative men and women who, the conservatives now say, are much better equipped with their two or three law clerks, to enforce the laws of Congress. Conservative judges, the argument goes, have more expertise and ability to enforce EPA, or mining regulations, or FAA rules, than the agencies staffed by hundreds of experts.
In other words, the worm has turned. Bad (judges running things) is now good, and good (agencies with experts) are now bad.
And in a twist of fate, you know who led the charge at oral arguments this week to overturn Chevron? None other than Reagan EPA administrator's little boy Neil, all grown up and a Supreme Court Justice.
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| About to take down the federal government |
And what about the Herring you sharp eyed DeSantis judges are saying out loud? One of the two cases challenging Chevron is a family of herring fisherpeople who objected to an agency rule requiring them to have agency experts on their fishing boats to make sure the boats are following agency regulations to protect the north Atlantic herring stocks.
"By letting agencies construe laws when Congress did not think about the problem, means the government always wins" opined Justice Gorsuch during oral argument.
Things look good for the herring fleet, bad for the herring, and bad for the way government has been run for the last 60 plus years. Your local federal judge is going to be telling the FAA how to staff air controller towers, coal mines on mine safety, and nuclear reactors on how to stop meltdowns. Because they have so much more expertise than the agencies designed to enforce federal law.
Yeah, right.
Whose ox was gorsuched? Neil's ox.