Collateral Damage
In its zeal to stop “excessive government regulation,” the Supreme Court overruled a forty-year legal precedent on June 29, 2024, one that dissenting Justice Elaine Kagan called “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.”
Ostensibly a case about commercial fishing fees, those paying attention knew Loper Bright Enterprises v. Raimondo (Loper Bright) was about bigger stakes. Meredith Moore, director of Ocean Conservancy's fish conservation program, speaking shortly after oral arguments were heard by the Court on January 17, 2024, warned a win for the plaintiffs "will allow science-based management and agency expertise to be replaced with the inexpert policy and ideological preferences of unelected judges, potentially resulting in dramatically different interpretations of law across the country."
The Court’s majority decision, written by Chief Justice John Roberts, fulfilled a century-plus quest of business and corporate lobbying interests to rein in “excessive government regulation.” It’s reasoning, however, puts all federal agencies, especially science-based programs and policies like those affecting cancer research and treatment, at great risk of non-science-based political manipulation with a high probability of creating unforeseen repercussions.
Could a legal decision intended to limit business regulation, actually affect issues as seemingly unrelated to it as cancer and myeloma? Yes, Moore said, while “the consequences of this case will be serious for fishery management…it also puts at risk all of the environmental and social programs that keep our air and water clean, our homes and workplaces safe, and ourselves and our children healthy.”
Roberts’ opinion quickly moved from the specifics of the case to business regulation in the abstract. Regulation necessarily equaled increased costs. Laws should be expected, according to Roberts “to produce readily foreseeable outcomes” to help in making business plans and decisions. That was why a unanimous opinion written forty years ago by Justice Antonin Scalia, Chevron U.S.A. vs. Natural Resources Defense Council (Chevron), had to be overruled. The case let federal agencies use their expertise to implement laws and rules if they were not explicitly directed by Congress in legislation.
Kagan, in her dissent, explained the reason for what would soon be called Chevron deference: “Congress passes often contain ambiguities and gaps. Sometimes they are intentional. Perhaps Congress ‘consciously desired’ [this] believing that regulatory experts would be ‘in better position’ than legislators to do so.”
Chevron deference became the legal standard to balance unfettered freedom with the need, at times, to give up some freedom to defer to expertise. This may be best illustrated in a classic, simple political science exercise. One needs expertise, not freedom to fly an airplane. Commercial passengers give up some of their freedom to defer to the expertise of the pilot. For obvious reasons.
Chevron amended the Administrative Procedure Act of 1946 (APA), which limited agencies’ authority to the exact wording Congress used to in legislation. For issues of doubt, the APA set up agency procedures to publish proposed regulations and allow public comments as the agency considered final rules. The bottom line: agencies existed to carry out laws, not shape them. That was Congress’s role. Any ambiguities or conflicts were to be resolved by the courts.
The APA’s intent was to rein in the explosive growth of the federal government due to rapid growth spurred by New Deal legislation and World War II. But as life, as modernity – science, economics, society – became more complex, as compartmentalized expertise became the norm and sought after, average levels of education were not sufficient for all subjects, leading to questions about the scope of congressional intent balanced with specific competence about the various functions of federal government.
Loper Bright decided the Scalia majority of forty years earlier was wrong. With breathtaking arrogance, Justice Roberts wrote: “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” The APA should never have been amended. An almost eighty-year-old law was resuscitated to ignore the forty-year-old law it amended!
“In one fell swoop,” wrote Justice Elaine Kagan in her dissent on behalf of the three-vote minority, “the majority today gives itself exclusive power over every open issue – no matter how expertise-driven or policy-laden – involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself to the country’s administrative czar.”
Congress, on the other hand, doesn’t claim to have this omniscience. According to Kagan, Congress “knows that it does not – in fact cannot – write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve.” Agencies also “report to a President, who in turn answers to the public…courts have no such accountability and no proper basis for making policy.” As Kagan sums it up in her dissent, under Chevron, a “court does not insert itself into an agency’s expertise-driven, policy-laden functions.” It adjudicates them.
Kagan cites examples that don’t require legal training of any sort to understand. For example: “…the FDA regulates ‘biological product[s],’ including ‘protein[s].’ When does an alpha amino acid polymer qualify as such a ‘protein’? Must it have a specific, defined sequence of amino acids?” And when Congress uses words and phrases in legislation like “fixed,” or “single, best meaning,” or “at the time of enactment,” Kagan asks, “Who decides which of the possible readings should govern?”
Before Loper Bright , the answer was clear: “the choice should usually fall to agencies, with the courts broadly deferring their judgments. In her dissent, Kagan noted in the forty years since the decision, Chevron“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.” For cancer and disease communities, that system was working. Now this is in doubt.
As Jim Morris explained in The Cancer Factory, doubt can be a lawyer’s best friend in court when defending against a claim of occupational cancer. Even when the science is compelling, 99% certainty still leaves the door open for 1% of legal conjecture, more than enough for a good lawyer to create more uncertainty. While legal complexity was muddying waters in courtrooms, however, it became motivational for policymakers.
Experts and specialists entering federal government in large numbers beginning in the 1930s. Think Frances Oldham Kelsey and thalidomide. Now think of thousands of people like her, with passion, knowledge, and training joining government agencies. Virtually all toiled in anonymity, attending to details far beyond the reach and understanding of the citizens they served. Whatever progress or “victories” they had usually came in small increments, as The Cancer Factory described. But sometimes publicity would assist science.
Highly visible events causing immediate and long-term death and disability led Congress and the courts to broaden scientific assumptions without the certainty court decisions require. As we have seen, programs were created for surviving victims of September 11th or Vietnam veterans exposed to Agent Orange, who were assumed to have been afflicted with various diseases, including myeloma, due to their exposures to widespread toxins.
The science of environmental and occupational links to cancer and disease is clear, even if toxins can’t be unconditionally linked to diseases in specific people. Conversely, preponderant evidence that may spur new laws is of far less value in court, for individuals who contract their diseases out of the spotlight. It’s a kind of perverse lottery for which few are eligible. Expertise in the trenches of research and treatment matters in the lab, the question is, how much will it matter in future science policies?
Imagine a scenario, a myeloma drug being considered for approval by a Food & Drug Administration (FDA) panel of experts. The drug showed significant effectiveness in a small group of patients, but induced secondary, often deadlier cancers, in another small cohort of patients. After testimony from experts, the pharmaceutical company making the drug, patients, and physicians with positive and negative stories, the expert panel votes against approval. The panel deemed the risks far outweighed the potential benefits.
An wealthy, politically well-connected patient belonged to that small cohort of patients who did extremely well. Based on their experience, they strongly believe it should be approved, the panel either didn’t understand or was mistaken. Since experts and staff overseeing the drug’s approval process are merely advisors, the final decision will be made by a panel of judges, none of whom has any formal scientific education beyond college intro courses (much like the typical myeloma patient). And those judges are convinced in private meetings with the patient and the company convinces them about unpublished data indicated the problems are solvable.
The judges overrule the FDA advisory panel to approve the drug, despite expert opinions. As farfetched as this might seem, it’s not anymore.
On July 4, 2024, the Supreme Court released thirteen separate corrections to decisions made in the closing weeks of the Court’s annual session. In one, Ohio v. EPA, a case blocking implementation of an EPA clean air regulation, Gorsuch made fundamental errors, stark reminders of the chaos the Loper Bright invites.
A letter to the editor of The New York Times from a biologist with the U.S. Fish and Wildlife Service published on July 2, 2024 sums it up best:
As an example of how dangerous and absurd this is, just the day before, in a separate decision involving the E.P.A.’s authority to regulate air pollution, the court repeatedly confused nitrogen oxide, a pollutant targeted by the E.P.A. in its challenged regulation, with nitrous oxide. Nitrogen oxide creates smog. Nitrous oxide is laughing gas.
That fact that Gorsuch made this mistake just one day before release of Loper Bright can be considered laughable. A trained chemist, on the other hand, would never have made such a basic mistake. You? Me? Yes. (Unless you’re a chemist.) Might this be a preview of things to come? If mistaken rules become enshrined as federal procedure, will corrections even matter? Thankfully, we don’t make the rules. But remember, from now on, “Courts do.”
In Personalized Diversity, I explained good science challenges assumptions and is not bound to them. Science cannot guarantee to “produce readily foreseeable outcomes.” The majority demands something that cannot be universally delivered.
Under Chevron deference, Kagan wrote, “the court does not insert itself into an agency’s expertise-driven, policy-laden functions.” Conversely, Loper Bright envisions a world in which judges are omniscient about any possible regulatory issue. In overturning a 40-year-old precedent in favor of one written in 1946 (and fundamentally amended by Chevron), when DNA was still to be defined, when jets were mostly experimental, when many fields of medicine common today didn’t even exist.
Taken at face value, this case seemed organic: a small business under regulatory siege fought the system and won. Growing evidence is emerging, however, that the case was intentionally chosen as a vehicle against “excessive government regulation” by the anti-government regulation political network supported by the billionaire Koch brothers network. The facts of the case were tailored to achieve something bigger.
Loper Bright’s true intent, it seems, was to gut “excessive government regulations” linked to Chevrondeference. The case revolved around a legal requirement for commercial fishing boats to hire observers to monitor catch limits, safety protocols, and other federal regulations. A fee of “up to $710 per day” for trips that could last up to two weeks which, according to the company suing, could potentially add up to twenty percent of total costs.
The origin of the fee goes back to congressional legislation empowering the Department of Commerce to study and prevent commercial fishing operations to address “overfishing and the need for sound management of fishery resources.” Congress did not, however, expressly state how to do it. The agency assigned to enforce the law held hearings and surveyed scientists and fishing operations, eventually deciding on requiring independent observers to be on the ship. Since Congress provided no funding, the fee was set in order to gather needed information.
Loper Bright ruled agency staff – “government bureaucrats” – did not have the legal authority to make rules, congressional directives did. The ADA put any doubt about intent into the realm of judges. Chevron found that if Congress was not explicit, agencies had the expertise needed to make them.
Going as far back as the turn of the 20th century, “excessive government regulation,” and its corollary, “excessive costs passed on to the consumer,” have been essential to the business and corporate repertoire. Even as muckrakers exposed atrocious workplace conditions that made worldwide headlines, business interests sought to limit reform whenever possible. Despite this opposition, large numbers of reformers spurred on the early 20th century progressive movement, changing laws and attitudes to focus on the needs of average people, not elites.
Progressives advocating for issues like better, safer working conditions were labeled as “radicals, socialists, and communists” by their political adversaries. According to them, any increased worker productivity that occurred happened in spite of, not because of, reform. By the mid-20th century, these views became enduring, core principles of the Republican Party.
The New Deal translated many of the ideas of the progressive movement into numerous agencies and policies. World War II acted as an additional accelerant of federal bureaucracy. Resistance to this unprecedented expansion of government functions led to the passage of the APA.
By overruling Chevron deference in favor of a 1940s era ruling, Kagan wrote “the majority rejects what judicial humility counsels not just once but twice over.” This is not about the law, according to Kagan. “The majority disdains restraint, and grasps for power.” And no one, regardless of their confidence, can predict where that power will lead.
It’s odd how memory works, remembering the strangest things at the weirdest times, with absolutely no context whatsoever. Or so it seems.
I majored in political science in college and have had a life-long interest in 20th century German history and literature. Maybe that’s why I can still clearly see and hear my comparative government professor making a point more than forty years ago.
We were discussing how any normalcy was maintained at all between the end of World War I and the Weimar Republic’s first democratic elections. “The bureaucracy!” he bellowed, as he started to make a mundane topic interesting. With all the turmoil going on, public workers still made sure the street cars, busses and trains were running. While people were marching in the streets or shooting behind barricades, bureaucrats made sure pension checks went out and salaries were paid. I never considered this before; I will never forget it as long as I live.
Fast forward to my first day as a United States Senate staffer in 1991. One of the great joys of working in Washington was knowing any question about anything could be answered by someone in some agency somewhere in the city. Washington, DC and the federal government had experts on literally any subject in the world. As a staffer for a United States senator, I could call any of them. And because I worked for a senator, they returned my calls!
Another wonderful resource was the Congressional Research Service, which produced expert reports on everything under the sun. Whether it was agricultural policy in southern African nations to fish caught in the Gulf of Mexico to poverty in some state to military spending in Mongolia, there seemed to be an analysis on anything. And if there wasn’t, it could be requested and usually got done. Someone somewhere knew or knew where to go to find out quickly. It was an incredible resource and opportunity.
Over the years, I’ve gotten to know a lot of federal workers in the trenches and in the forefront of putting the wishes of Congress into action. The oddest thing happens, the longer they serve, the more apolitical they get. The task at hand, planning that needs to be done, determining the limits and possibilities laws and regulations allow; these become the driving goals.
Yes, we complain about “government bureaucrats,” but they have a tradition dating back to President Chester A. Arthur’s signing the Pendleton Act into law in 1883. Its intent was to professionalize what was then a relatively small, inefficient, and politically corrupt federal bureaucracy based on the motto, to the victor go the spoils. Employment was dependent on political patronage; if the “wrong” candidate won, one’s job could be lost. The main qualification was to be unconditionally loyal, not competent.
In the last decade, the federal bureaucracy has become “the deep state” for a rather large, vocal, and growing minority of the population, which may actually be a slight majority. With Loper Bright, they now have legally sanctioned ammunition to begin chipping away at every federal agency that produces uncomfortable political facts or indications.
Where will future congressional staffers go to learn about complex issues they deal with every day? After Loper Bright, calling experts may be involved, but they will be merely advisory. The real decisions will be made by judges.
But how will staffers know which judges are responsible for what issues? And should they find out and call to learn more, will their calls even be returned?
Knowing this is not comforting for me as a member of the myeloma community. Nor should it be to anyone whose life is affected by how federal agencies make decisions. They may find out they are just some of the collateral damage of a political struggle that has just been given legal status by the Supreme Court.
Is this page about politics or Multiple Myeloma ?