Skip to content

Let The Chaos Begin

How many eggs is a dozen?

Public Notice sees fallout from the SCOTUS decision to overturn the Chevron deference doctrine. It’s already heading to courts:

It’s been barely a week since conservatives on the US Supreme Court radically upended the balance of power between the branches of government, giving the federal courts the exclusive power to interpret statutes rather than deferring to agency experts. And we’re already seeing impacts on the ground.

Right-wingers have been in the habit of running to their preferred courts to get regulations overturned, but the decision in Loper Bright v. Raimondo, which officially destroyed agency deference, will make it easier — even routine — to block every Biden administration rule they don’t like. 

Lawsuits to invalidate specific rules had been proceeding through the federal courts before Loper Bright, generally arguing that agencies exceeded their authority in promulgating a rule. These lawsuits exist in no small part because the Supreme Court made it clear they would destroy Chevron deference for years now, with Justice Neil Gorsuch having led the way well before his appointment to the Court. 

Trump appointee Sean Jordan, who sits in the reliably hard-right Eastern District of Texas, was so eager to block a Biden administration’s overtime rule that he dropped his decision the same day Loper Bright came out. It runs 36 pages and mentions Loper Bright multiple times, which means either Jordan was so confident of the Supreme Court decision that he either wrote it in advance or he hurried to stuff Loper Bright into his already-written opinion.

Jordan’s opinion also rests heavily on dictionary definitions rather than expertise from the Department of Labor, which issued the rule. So now, the rule that would have made 4 million more Texas workers eligible for overtime, and thus more pay, is blocked thanks to a hurried read of a SCOTUS opinion and Webster’s Dictionary.

If you are LGBTQ, your rights are in the crosshairs. Let the chaos begin.

What this mean is that anytime a business doesn’t like a federal rule, it can just sue. It promises to be a free-for-all. Three hospitals in New Jersey sued HHS the day Loper Bright came down, saying the agency’s interpretation of a statute governing Medicare reimbursement is unlawful.

In another case, filed before Loper Bright, a trucking company challenging the Biden administration’s rule that addressed misclassification of independent contractors filed a memorandum on July 2 arguing that Loper Bright means the court should not defer to the Department of Labor’s interpretation of the law. The next day, Trump appointee Ada Brown of the Northern District of Texas enjoined enforcement of the Biden administration’s rule prohibiting non-compete agreements but limited the injunction to the plaintiffs, which are various pro-business groups like the Chamber of Commerce. 

Taken together, it’s evident that any moves the administration makes to tilt the playing field even slightly in favor of workers are designed to fail once they reach a conservative federal judge. And thanks to right-wing judge shopping, plaintiffs are often able to get their case in front of an anti-regulation judge they know will be favorable to their challenges.

You know, if we were not citizens of this country but merely renters, under standing property law we would at least be entitled to the quiet enjoyment of this country. The ownership class might actually respect that. But I wouldn’t count on it even then in the United States of MAGA. There’s no quiet enjoyment in our futures for some time.

It’s that much harder to enjoy the protection of the law when the law is whatever some reactionary judge decides it is today.

Lisa Needham concludes:

…  rather than having a well-reasoned rule that applies uniformly across the country, courts will invalidate or uphold rules in a piecemeal fashion based on the whims of judges who are in no way qualified to interpret complex regulatory issues. Those judges, though, are extremely well-qualified to find a way to strike down regulations whenever conservatives demand it. The demise of the regulatory state is as grim as anyone could have possibly guessed, and absent court reform, there seems to be no way out. 

How far might the fringe right take this? A gallon of milk or gas need no longer be a gallon. An inch is 2.54 centimeters. Or is it? How many eggs is a dozen? Depends now on how the judge feels today.

● ● ● ● ● ● ● ●

For The Win, 5th Edition is ready for download. Request a copy of my free countywide GOTV planning guide at ForTheWin.us.

Published inUncategorized