As it decimates federal regulatory powers, the Supreme Court bludgeons another precedent | Editorial

The word legerdemain, derived from a French term for sleight of hand, refers to a magician’s ability to get an audience to focus so much on what the entertainer wants you to see — perhaps an attractive assistant — that you miss the trickery occurring right in front of your eyes.

Legerdemain could also describe how Americans’ understandable focus on other important issues, such as abortion, gun control, and the economy, distract us when political and corporate interests don’t want us to notice their magic has all but destroyed the U.S. Supreme Court’s 235-year-old reputation as an apolitical arbiter of justice.

Consider the court’s recent decision in a case that, to the naked eye, seemed only about a complaint by herring fishermen that they shouldn’t have to pay for the federal monitors assigned to their boats to make sure they don’t overfish an endangered species.

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“There’s nothing wrong with the monitors,” admitted New Jersey herring fisherman Bill Bright. “They’re actually gathering information that is valuable to us.” Bright nevertheless argued that the fees hurt his bottom line, but the National Oceanic and Atmospheric Administration suspended the two-year-old monitoring program more than a year ago because it didn’t have enough money to continue administering it. NOAA also refunded all past monitoring fees paid by the fishermen to the Atlantic States Marine Fisheries Commission.

So, why did the Supreme Court even agree to hear the case after both the U.S. Court of Appeals for the District of Columbia Circuit and the Boston-based U.S. Court of Appeals for the First Circuit had ruled against the fishermen? Could it be that the court was the top hat from which magicians who didn’t want the public to notice what was going on pulled out a big, fat bunny rabbit to wow their crowd?

Included among those magicians were two organizations supported by conservative billionaire Charles Koch, the Cause of Action Institute and the New Civil Liberties Alliance, whose stated aims include “to protect constitutional freedoms from violations from the administrative state.” Those groups’ target was neither the NOAA nor the U.S. Department of Commerce, which oversees it, but all federal agencies, which they believe place too many limits on people’s ability to make money.

Donald Trump was barely a month into his presidency when his White House counselor, Steve Bannon, called for the “deconstruction of the administrative state,” by which he meant all federal agencies. Trump later warned in a speech in Poland that the “steady creep of government bureaucracy,” which he called the “deep state,” drains “the vitality and wealth of the people.” Those words had to be heartening to the nearly three million federal workers in this country.

Koch and his sycophant political groups saw the fishermen’s lawsuit as a convenient vehicle to get a conservative Supreme Court to say federal agencies cannot collect fees or make rules based on laws passed by Congress because the Constitution says interpreting a law’s intent is the role of the courts. The court agreed Friday by dismissing a 40-year legal precedent known as the “Chevron deference,” which said federal agencies with specific expertise may at times be better suited than a court to interpret a law.

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That 1984 Supreme Court ruling in the case of Chevron USA v. Natural Resources Defense Council said Congress had given the Environmental Protection Agency clear authority to make policy decisions concerning the Clean Air Act, and that lower courts in similar instances should also respect the authority of other federal agencies. That standard has since been applied in thousands of judicial decisions.

“It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest,” said Justice Elena Kagan, who with Justices Sonia Sotomayor and Ketanji Brown Jackson were the only dissenters in the fishermen’s case. U.S. Solicitor General Elizabeth Prelogar urged the court to clarify the limits of Chevron, if necessary, instead of “upending decades of settled precedent.” But to no avail.

Damien M. Schiff, an attorney with the Koch-supported Pacific Legal Foundation, said lawsuits like the herring fishermen’s are becoming the preferred way to fight federal regulations. “It’s much more efficient,” he said. “To successfully wage such a campaign, you need three things. Money, legal personnel, and a judiciary that’s receptive to strategically selected and timed legal arguments. Money’s never going to be a problem. One can easily litigate to the Supreme Court on the cheap.”

With this Supreme Court, you have to wonder just who is being paid.