By Tim Henderson, Stateline.org (TNS)
A major U.S. Supreme Court decision this summer was hailed as a conservative court’s broadside against a Democratic administration, giving red states more backing to delay or overturn policies they don’t like, such as transgender protections and clean energy goals.
But the ruling in the Loper Bright case, which granted courts more power to scrutinize federal rules, can go both ways. Experts say it will likely give blue states more leeway to attack any forthcoming policy changes from President-elect Donald Trump — ranging from immigration and the environment to Medicaid and civil rights.
The decision overturns a legal concept called “Chevron deference,” in place since 1984 and named after a case involving the Chevron oil company. That ruling granted federal agencies wide discretion in interpreting vague laws that had been passed by Congress and sent to the executive branch to sort out the details. Generally, courts deferred to the agency regulations.
Chevron deference became a superstar of the courts, cited in more than 18,000 federal court decisions.
The latest ruling wipes that all away. Experts said it will boost blue-state resistance to Trump policies. Lawsuits already are being planned in many statehouses, as California holds a special session to set aside money for legal fights, and other states such as Connecticut, Massachusetts, Minnesota, New Jersey and New York also talk court strategy. Democratic governors in Colorado and Illinois formed a coalition in November to “fortify essential democratic rights nationwide.”
In effect, the ruling opens more federal rules to those court challenges. Blue states now have a new weapon to fight conservative federal rules on issues such as immigration, climate change, abortion access and civil rights.
Ironically, the original 1984 decision establishing more power for federal agencies was made by a conservative court that was paving the way for deregulation in the Reagan administration, noted Leonardo Cuello, a research professor at Georgetown University’s McCourt School of Public Policy’s Center for Children and Families.
“It was a case that really opened the door to Reagan deregulation, sort of untying the hands of the [federal] agencies by saying, ‘We’re going to give you a lot of slack to start doing things,’” Cuello said.
“Fast-forward to today, and overturning Chevron really has the opposite effect,” Cuello said. “You’re handcuffing the new [Trump administration] agency from deregulating.
“It makes it hard for an agency to build out new things and it makes it hard to undo existing things,” he said. “There’s some irony to the fact that a conservative majority issued that ruling just before a conservative administration took office.”
Trump appointed three of the six justices who supported the decision.
Some Trump allies still see the ruling as a weapon against excessive regulation. Vivek Ramaswamy, chosen by Trump alongside tech billionaire Elon Musk to lead an advisory body the president-elect named the Department of Government Efficiency, said in a December post on X that the decision “paves the way for not a slight but a drastic reduction in the scope of the federal regulatory state.”
But most experts see the change as an obstacle to a new Republican administration looking to make sweeping changes but lacking enough support in Congress to pass large-scale legislation. Any proposals restricting access to abortion or attempting to dismantle the Affordable Care Act or Medicaid expansion will be more complicated, said Zachary Baron, a director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute.
“All these new policies are going to be challenged in court, and state attorneys general will certainly be leading the way.” Baron said. “I think there will be a lot of big legal fights to come.”
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Now, it could become harder for a Trump administration to deregulate areas of the economy, crack down on immigration, impose work requirements on Medicaid recipients, or remove protections for gender and LBGTQ+ status. The Biden administration similarly has run into roadblocks.
“We have already seen conservative judges point to Loper Bright as one reason to block the Biden administration’s efforts to expand the reach of nondiscrimination protections, including with respect to LGBTQ+ folks,” Baron said.
For instance, federal courts in Florida, Mississippi and Texas — in response to lawsuits brought by various Republican states — prevented an Affordable Care Act rule banning gender identity-based discrimination from taking effect in July. Each ruling cited Loper Bright as one factor.
With Trump’s election, it’s now blue states that have a sharper tool to combat Republican agendas.
“To the extent that the Trump administration tries to radically rewrite these nondiscrimination protections again, he may well find that Democratic state AGs [attorneys general] will be able to successfully block such efforts as a result of Loper Bright also,” Baron said.
Congress has not approved a major immigration or environmental law for decades. That has forced both Democratic and Republican administrations to change policy through either executive order or federal regulations that can now be more easily challenged by hostile states in the courts.
“If you like the administration that’s advancing policies, then Loper Bright is not a good thing for what would happen when states challenge those policies,” said Nancy Morawetz, a New York University law professor who helps run an immigrant legal clinic, speaking at a September conference on immigration law.
Trump’s election does not change that, Morawetz told Stateline later.
“If the administration is anti-immigrant, Loper Bright provides stronger grounds for having a court look at whether it is breaking the law,” Morawetz said. “The executive branch gets less deference.”
The court’s decision may also help immigrants themselves when they go to court to challenge federal policies on deportation and legal status, Morawetz said.
Red states looking to enact Medicaid work requirements under a more amenable Trump administration also might be thwarted by the Loper Bright decision, Cuello said. The first Trump administration lost every court challenge when it granted state requests for work requirements, he said, and Loper Bright will make it even harder this time.
“Even with the more generous standards granted to the agency [under the previous Chevron deference], those cases got shot down, and so now you would expect they’d be even more likely to be shot down,” Cuello said. “The win is harder.”
The Loper Bright decision could also hamper promised efforts by a Trump administration to unwind environmental regulations, by making it easier for blue states to challenge any changes. That would flip the script from today’s lawsuits, in which red states are fighting the stricter regulations of coal-fired power plants.
Red states have also fought new Biden administration vehicle pollution standards, and Trump allies have threatened to undermine scientific integrity policies seen as preventing deregulation by shielding scientists from political interference.
The Loper Bright decision went 6-2 in favor of New Jersey herring fishermen who opposed a 2020 federal rule requiring them to pay salaries for the third-party observers on their boats who were there to ensure compliance with regulations. The fishermen argued that the cost, up to $710 per day, had no legal justification and cut their family profits by 20%.
Lower courts ruled against the fishermen, saying the often-cited Chevron deference principle did not allow them to challenge the federal rule. The Supreme Court struck down the principle, ruling that courts are required “to exercise their independent judgment” on federal rules.
“Agencies have no special competence in resolving statutory ambiguities. Courts do,” Chief Justice John Roberts wrote.
In a dissenting opinion joined by liberal justices, Associate Justice Elena Kagan called the deference to agency interpretations “part of the warp and woof of modern government, supporting regulatory efforts of all kinds … keeping air and water clean, food and drugs safe, and financial markets honest. And the rule is right.”
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