The following appears in the Letters section of today’s Financial Times under the heading “US courts vs. agencies is not a left-right problem”:
"Brooke Masters is quite right in saying that U.S. businesses may come to regret at least some aspects of the Supreme Court’s Loper Bright decision overturning the “Chevron deference” doctrine that held judges should defer to the decision of government agencies when laws are ambiguous (Financial Times, Opinion, “Red-tape win for US business may backfire”, July 12). This may also be true, when political winds change, for conservatives who applauded the decision. Progressives, on the other hand, may come to love Loper Bright.
Consider the Chevron doctrine itself. When the Supreme Court decided the case in 1984, it was viewed as a victory for conservatives because the Court deferred to an interpretation of environmental laws by Ronald Reagan’s Environmental Protection Agency. (As a historical footnote, Anne Gorsuch, the mother of current Supreme Court Justice Neil Gorsuch, was the head of the EPA at the time the agency made the decision being reviewed in that case.)
During the current Biden administration, conservatives have opposed agency interpretations of laws that the agencies claim are ambiguous and have turned to judges to block them. Progressives have been livid when the courts decided against the agencies.
However, the next time Republicans control the presidency and bureaucracy, perhaps as soon as next year, progressives may be happy they can turn to the courts to try to stop conservative bureaucrats from interpreting allegedly unclear laws their way. And conservatives may rue the day that the Supreme Court, in effect, overturned Justice Gorsuch’s mother.
In any case, there is a simple solution for those who don’t want courts to be “interfering” with what federal agencies are doing: get Congress to pass clear laws, specifically telling the bureaucrats what they are supposed to do and how they are supposed to do it."
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