Long read: The Supreme Court just made a massive power grab it will come to regret

India is not the only free market democratic nation grappling with the delicate balance of power between the Parliament, the Executive and the Judiciary. When we discuss this subject with thinking Americans, we find them even more worried about this subject than we are. Last week, in a remarkable judgement, the American Supreme Court dramatically changed the balance of power between the elected representatives and the judiciary (remember in America, unlike India, the Supreme Court justices are all appointed by the President and cannot be removed or retired). Ian Milhiser explains exactly what happened:

“The Supreme Court handed down what is likely to be one of its most consequential modern-day decisions on Friday.

Loper Bright Enterprises v. Raimondo fully consolidates the Court’s dominance over federal agencies within the executive branch of government. It is a radical reordering of the US separation of powers, giving the one unelected branch of government all of its own power, plus much of the power that Congress has vested in the executive branch.

Loper Bright overrules a decades-old decision, known as Chevron v. National Resources Defense Council (1984), which held that courts typically should defer to federal agencies when those agencies determine federal policy.”

So why is this a big deal? Mr Milhiser explains:

“Loper Bright transfers a simply astonishing amount of policymaking authority from federal agencies that collectively employ tens of thousands of people, to a judiciary that lacks the personnel to evaluate the overwhelming array of policy questions that will now be decided by the courts. This problem will be felt most acutely by the Supreme Court itself, which has only nine justices staffed by a bare handful of law clerks and a skeletal administrative staff.

The Court’s decision to seize this power is all the more puzzling because it has already given itself sweeping authority to veto nearly any decision by an executive branch agency that, in the Court’s words, involves a matter of “vast ‘economic and political significance.’”

The Court’s Republican majority, in other words, is already the final word on any policymaking question that Congress delegated to a federal agency, which triggers a partisan controversy. Loper Bright expands the Court’s authority so that it is also the final word on thousands of questions that hardly anyone cares about at all — questions like what the cable television rates should be on one of Hawaii’s islands, or how much nitrogen can be discharged by a wastewater treatment plant in Massachusetts.”

Mr Milhiser points out that thanks to last week’s judgement that US Supreme Court justices have reversed a more liberal ruling from the 1980s which delegated more power to federal agencies: “Loper Bright overrules a Reagan-era Supreme Court decision known as Chevron v. National Resources Defense Council (1984), which held that when a federal statute delegating policymaking authority to an agency is ambiguous, courts typically should defer to the agency’s reading of that statute rather than trying to resolve the ambiguity itself.

The reasons for this deference were twofold. As Chevron explained, “judges are not experts” in the kind of difficult policy questions that come before federal agencies. Think of questions like whether a product derived from red rice yeast, which purportedly helps promote healthy cholesterol levels, counts as a “drug” or a “dietary supplement” under federal law? Under Chevron, this question would be decided by FDA officials who’ve spent decades studying drugs and dietary supplements. Now it will be resolved by political appointees with law degrees and black robes.

The other justification for Chevron is democracy. “While agencies are not directly accountable to the people,” the Court said in Chevron, the leaders of agencies are political appointees, and they answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices,” rather than placing that power in the hands of unelected political appointees who serve for life.”

Implicit in the argument Mr Milhiser is making is the point of view that the latest cohort of Supreme Court justices believe that they – rather than agencies accountable to elected politicians – should opine on critical policy choices.

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