The Loper Bright case and the recent ruling from the U.S. Supreme Court generated more than the average attention normally afforded to the standard policy-rich rulings. It’s nice to see. Cases like this do not traditionally generate the kind of retail political attention that rulings associated to social issues do, and we can take a moment to enjoy a healthy conversation about the role and power of Congress over the federal bureaucracy.

Looking favorably on the ruling means taking the opportunity to consider the role and scope of government and how best to support a way forward that addresses efficiencies and power in a contemporary democracy. For some of us, it’s a moment to take pause and consider what the Supreme Court is working toward here and do so without filtering it first through a view of the six versus two perspective (though it should be noted that Chief Justice Roberts himself wrote for the majority opinion indicating his view of its elevated status as a landmark case as a new precedent overturning a previous decision).

“This decision has set off alarms for some, but it actually points the way toward a role for the courts that is less divisive — because it pushes everyone in our system, including judges and Congress, toward their proper constitutional work,” writes Yuval Levin, a senior fellow at the American Enterprise Institute and editor in chief for National Affairs.

Levin and others are highlighting the opportunity for Congress to take back control and authority where much of its power has been delegated to government regulators at various agencies. It’s part of a trend, and as Chief Justice Roberts examines his legacy and the troubled reputation of the court, recent cases pushing authority and control back to elected leaders offers an interesting opportunity for contemporary Americans to consider what today’s democracy should look like.

Certainly, that’s a big change for regulatory agencies and their staff scattered in offices across the country — not just the Beltway in and around Washington, D.C.

Others view the ruling as an attack on administrative law where for decades experts have been relied upon to interpret ambiguous statutes where questions remain. The Wall Street Journal‘s opinion page recognized the concern in the July 5 editorial pages: “Progressives rightly fret that Loper could put other Biden rules in legal jeopardy—for instance, the Securities and Exchange Commission’s climate disclosures and Food and Drug Administration’s classification of lab-developed tests as medical devices. Regulators will now have a harder time stretching laws to expand their power.”

Opposing views consider the decision a decisive blow to a professional bureaucracy that’s largely maligned and frequently minimized as a punchline. While the characterization is not without its merit, it’s a broad brush applied to a broader array of specialists and experts. In his book, The Fifth Risk, Michael Lewis warns readers of the costs associated with dismissive swatting at the professionals who work at the top of the American government. And yet, they are easily grouped into the same class of worker we encounter in the line at the post office or DMV.

Specifically to the ruling, however, advocacy groups pointed to the dissenting opinion written by Justice Elena Kagan, considering the blow to agencies as movement of power to courts. Concerned that corporate interests would find favor in the process, they view courts as the likely purveyor of policy when disputes over vague statute emerges. Recognizing the expertise in technical regulatory issues among agencies, dissenting justices expressed value in the established process in administrative law.

Writing in dissent and voicing it from the bench, Justice Kagan said, “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role. It is not a role Congress has given them. … It is a role this court has now claimed for itself, as well as other judges.”

There’s another angle the Wall Street Journal‘s opinion page thought partisans should consider, because the Loper ruling is not limited to the Biden presidency, but of course … “This includes future Trump regulators. Judges will have more leeway to block Trump immigration actions. And Trump appointees will have a harder time rewriting the law without Congressional legislation, such as regulating the proxy advisory duopoly. This is a check on willful presidential power.”

The partisans might not be ready for this

As Levin highlights, the ruling appears to be a trend showing the Supreme Court’s favor to strengthen representative democracy. Given the nature of today’s Congress and the narrow majority in both Chambers (House: 219 Rs and 213 Ds with 3 vacancies as of 4/25/24; Senate:  49 Rs and 47 Ds with 4 Independents), establishing concrete policy with the level of detail and authority the Court says it has to take on is daunting. In an age where political opposition from within each party’s own members becomes toxic and extreme, primary opposition against incumbents will be armed with much more fodder for use in campaigns on social media and paid “interviews” on partisan podcasts posing as valid information networks. Politically, it might be costly, but in democracy and policy, we can look at this moment as an opportunity. For the voting class who pay casual attention to politics and policy, there’s a constant cognitive dissonance that advocates for a less toxic political environment where the antidote is better collaboration and deal-making among legislators. Whereas a formation of Compromise is idealized by casual voters in both parties, the reality is that this kind of C-word is worse than any other you might be think of when primary season arrives.

This delegation of rule-making is rightly positioned with authority inherently or expressly granted to agencies especially at the state level, and especially in Texas where the size of government agencies has swelled tremendously over the last several decades. In August, 2020, Texas Health and Human Resources Commission reported 36,054 FTEs.  In 2024, a database shows its total employee ranks at 37,511 with an executive commissioner salary of $317,754. Power resonates profoundly at HHSC where it oversees massive government enterprises such as allocation of contracts to manage Medicaid and is now consumed by yet another vendor contracting and procurement issue.

Texas is certainly design purposefully to legislate with brevity. Or so it was intended. The Texas Legislature meets for 180 days every two years with the intention of the the original designers to pass fewer laws. The result is a massive bureaucracy with legislators managing their personal finance through other career paths from farming and ranching to law, healthcare, and insurance. Among their legislation, however, are massive lanes to be filled with vehicles managed by agency leaders and their staff. Challenges to their draft decisions in advance of official rules require hearings from industry leaders, briefings with lobbyists, and official letters and presentations. Otherwise, challenges to final rules occur in court proceedings.

What the Court is saying

The Supreme Court might have a mainstream reputation as a 9-3 lightning rod, but arguably, Chief Justice Roberts could be steering the court to a place the strives to use its institutional powers to correct a system that leans partisan occasionally autocratic when Congress fails to deal with the minutia of governing.

The WSJ, again, writes: “The Supreme Court this year showed more faith in democratic self-government than its elite critics will admit.”

What Loper challenged – Looking at 1984’s Chevron case  

In 1984, Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc. essentially established a framework that has defined agency power ever since — 40 years.

A two-step framework emerged so that where Chevron applied, the first step required a court reviewing the matter to determine whether statute was clear, and if so, the court would apply the law as written regardless of the agency’s decision. If the statute was unclear, the second step would require the court to defer to the agency’s interpretation.  [source: Sidley Austin LLP] 

The Loper case, considered potentially landmark, over rules the 40-year standing of the Chevron ruling.

Check out the AI take here below where I feed a simple AI prompt into an AI generator and produce a quick brief:

Loper Bright Enterprises v Raimondo was a case in which the Supreme Court vacated and remanded a lower court’s decision, with the guidance that the Administrative Procedure Act requires courts to exercise their own judgment in deciding whether an agency has acted within its statutory authority. The Court overruled the Chevron v. Natural Resources Defense Council doctrine, stating that courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.

Justices Thomas and Gorsuch filed concurring opinions, while Justice Kagan filed a dissenting opinion in which Justice Sotomayor joined. Justice Jackson did not participate in the consideration or decision of the case. This landmark decision will undoubtedly have significant implications for how courts and agencies interact on matters related to statutory interpretation and administrative law.