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“Power Grab”: SCOTUS Overturns 4 Decades of Federal Regulatory Control, Hands Power to Courts

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The U.S. Supreme Court on Friday approved a power grab by corporate interests who want to strip federal agencies of their power to regulate public health, the climate and environment, worker protection and more. In the 6-3 ruling, the court’s conservative majority overturned a precedent known as the Chevron doctrine that stems from a Reagan-era ruling called Chevron v. Natural Resources Defense Council, which established that judges should defer to federal agencies on interpreting a law if Congress did not specifically address the issue. We speak with Mustafa Ali, former head of the environmental justice program at the Environmental Protection Agency, who describes it as “a very devastating decision,” and to The Nation's justice correspondent, Elie Mystal. “It's taking power out of our hands, out of the democracy’s hands, and putting it in the hands of the court,” says Mystal, who also addresses other recent rulings from the court at the end of its term, including the highly anticipated ruling on presidential immunity.

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Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman.

Today is the final day of the U.S. Supreme Court’s current term. We look now at several major rulings from the court’s conservative supermajority.

In a 6-to-3 ruling Friday, the court approved a power grab by corporate interests who want to strip federal agencies of their authority to regulate public health, the climate and environment, worker protections, food and drug safety and more. The court struck down four decades of a precedent known as the Chevron doctrine, that stems from a Reagan-era ruling called Chevron v. Natural Resources Defense Council, which establishes that judges should defer to federal agencies on interpreting a law if Congress did not specifically address the issue.

Justice Elena Kagan read her dissent from the bench, saying, quote, “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,” unquote.

Some Democrats responded to the ruling by vowing to introduce legislation to protect their policymaking ability. Senator Ed Markey said the ruling would create, quote, “a regulatory black hole that destroys fundamental protections for every American in this country,” unquote.

Meanwhile, Thursday, the justices voted 5 to 4 to block the Environmental Protection Agency’s Good Neighbor Plan, which allows the EPA to regulate air pollution that drifts across state lines. In a statement, Earthjustice wrote, quote, “The Court’s order puts thousands of lives at risk, forces downwind states to regulate their industries more tightly, and tells big polluters that it’s open season on our environmental laws,” unquote.

The Supreme Court had to issue a corrected version of its opinion in the case after Justice Neil Gorsuch confused the air pollutant at issue, which is nitrogen oxide, with nitrous oxide, which he continually referred to in the decision. Nitrous oxide is laughing gas, you know, that dentists administer. He said this more than five times in his opinion. But this is no laughing matter.

This all comes two years after the Supreme Court gutted Roe v. Wade in its Dobbs ruling and before today’s highly anticipated ruling on former President Donald Trump’s bid for immunity from his federal indictment for trying to subvert the 2020 election and stay in power.

For more, we’re joined by two guests. Elie Mystal is The Nation's justice correspondent and author of _Allow Me to Retort: A Black Guy's Guide to the Constitution_, his new piece headlined “We Just Witnessed the Biggest Supreme Court Power Grab Since 1803.” And Mustafa Ali is the former head of the environmental justice program at the Environmental Protection Agency, now executive vice president at National Wildlife Federation and CEO of Revitalization Strategies.

We welcome you both to Democracy Now! Mustafa Ali, let’s begin with you. Let’s talk about Chevron. For people who are not following this day and night, explain the significance of this decision.

MUSTAFA ALI: Well, this decision actually weakens our protections in relationship to clean air and clean water and the land. It says that the expertise that exists inside of federal agencies, those toxicologists, biologists, the others, who have spent their life learning and then being able to help to make sure that our country is protected, are no longer valuable. It says that those who are in the courts now get to make the final decision if you are able to breathe clean air, to drink clean water, or to be able to make sure that the land that you’re walking on or growing food in, it will be safe enough. This is a very devastating decision that was made. It should have had a warning label on it that said that the following actions are both deadly for both the democracy, for our economy and for the health of both wildlife and people.

AMY GOODMAN: And can you talk about what exactly the decision, _Chevron v. Natural Resources Defense Council, what started all this 40 years ago, and how this became so important?

MUSTAFA ALI: Yeah. Well, you know, it started because they wanted to make sure that there was actually clean air. So, the original decision said that folks in Congress can create the laws. They then move those over to the federal agencies, where the expertise actually exists. It also deals with the ambiguity that often exists inside of the law, and that you need to have those individuals who have the knowledge and the skills to understand the dynamics that will play out on the ground, play out on the ground in places like Cancer Alley or in Institute, West Virginia, or the diesel death zone that’s currently going on out in California. So, it was important. And over 18,000 times, it has been used, not only in the environmental context but in other contexts. So, it gave those individuals who have the skills to actually keep our country safe the ability to do that. And now that has been taken away.

AMY GOODMAN: How do you see this connected? And explain what Project 2025 is.

MUSTAFA ALI: Well, you know, one, this begins to follow a long line of actions that have been going on for over 40 years, all the way going back to Ronald Reagan, where business and others have been trying to deregulate. They’ve been trying to weaken the sets of laws that we have in place, the statutes, the rules.

And what is now playing out is that we’re seeing that there’s a shifting of power. Now you overlay that with Project 2025, which in itself is 900 pages of how we will restructure the government, and what you’ll find now is that you’re going to have individuals who will be put into place who will further weaken the basic sets of protections that are out there, will give business and industry — the polluting business and industry an opportunity to do more of that so they can maximize profits. And you will find that more folks inside of our country will be struggling for a breath of clean air and a drink of clean water.

AMY GOODMAN: I want to bring Elie Mystal into the conversation. Elie, The Lever and others reported that Supreme Court Justice Clarence Thomas changed his position on Chevron, one of America’s most significant regulatory doctrines, after his wife reportedly accepted secret payments from a shadowy conservative network pushing for the change. Thomas’s shift also came while he was receiving lavish gifts from a billionaire linked to other groups criticizing the same doctrine, which is now headed back to the high court, they were writing. The Lever notes the so-called Chevron deference doctrine stipulates that the executive branch, not the federal courts, has the power to interpret laws passed by Congress in certain circumstances. Can you talk about this connection and your overall response? Because it’s not only about the environment.

ELIE MYSTAL: Yeah. So, this goes to a larger Republican conservative shift on the issue. You brought up the initial Chevron decision in 1984. Let’s remember, that was a conservative decision. Chevron was championed by the conservative Svengali, Antonin Scalia, as one of the better decisions to ever come out of the Supreme Court. And the reason why it was a conservative decision in the ’80s and trumpeted by conservatives in the 1980s is because conservatives believed that they were more likely than not to hold control over the executive branch. Remember, this is during the Reagan era, right? This is when Reagan looked unbeatable. This is when George H.W. Bush would succeed him, right? So they thought that they would control the executive branch, and thus be able to deregulate the environment, worker safety, health safety, civil rights. They thought they could deregulate through the structures of the executive branch, and so they loved Chevron, because it kept what they thought were liberal activist judges out of their way.

Fast-forward 40 years, and what’s happened? Well, it’s actually relatively hard for Republicans and conservatives to ensure long-term control over the executive branch, but it’s relatively easy for them, now that they have this supermajority on the Supreme Court, to control regulation through the courts for the next 20 or 30 years. And so, that’s why Thomas, the rest of the conservatives have flipped on this issue. Remember, Chevron, again, if you go back to 1984, this was a decision trumpeted by the then-Reagan EPA head, who was Neil Gorsuch’s mom. Right? So, Neil Gorsuch’s mom wanted Chevron in the '80s when she was in control of an executive branch. Now that Neil Gorsuch is one of the people in control of the Supreme Court, all of a sudden, no, no, no, they don't want Chevron anymore. They want the courts to have the say.

And so, to roll it all back together — and I agree with everything Mustafa said, but you’ve got to remember, when we’re talking about a power grab, who is the power coming from? We know where it’s going to. We know it’s going to the conservative supermajority on the Supreme Court. But who is it coming from? Because a lot of conservatives and Republicans are trying to gaslight people and tell them, “Well, we’re just taking power from unelected bureaucrats of the EPA and giving it to unelected bureaucrats on the Supreme Court.” No, nah. They’re taking power from you. They’re taking power from the voters, because the voters, through their votes of Congress and the president, get to decide what laws and regulations we have. But when you take power out of the executive branch, you take power away from the one elected official we all are allowed to vote for, the president of the United States. And you give it to unelected people at the Supreme Court, who don’t change their minds every four or eight years. The only change — they can only be changed, you know, upon retirement or death, every 20 or 30 years. That’s the power grab here. It’s taking power out of our hands, out of the democracy’s hands, and putting it in the hands of the court.

AMY GOODMAN: And the court where justices the nitrogen oxide, such a serious pollutant, is nitrous oxide, laughing gas.

ELIE MYSTAL: Couldn’t be more on point for how nonexpert the court is than having literal Neil Gorsuch confuse laughing gas for smog in an opinion where he said the EPA cannot regulate smog.

AMY GOODMAN: Well, in another 6-to-3 ruling on Friday, justices ruled that local governments can criminalize sleeping and camping on public property, banning encampments of unhoused people. In a scathing dissent joined by Justices Kagan and Jackson, Justice Sonia Sotomayor wrote for the minority, “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. … For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional,” she said. Can you respond to this decision, Elie?

ELIE MYSTAL: Yeah. So, Neil Gorsuch, basically, who wrote the majority opinion for the Republicans, basically doesn’t think the Eighth Amendment is allowed to exist. Right? Like, this is actually a part of a long string of Gorsuch cases where he has written the Eighth Amendment out of the Constitution. Nothing is too cruel for Neil Gorsuch, and nothing — no punishment is unusual.

So, in this opinion, he wrote that criminalizing people, throwing people in jail, for the crime of not having anyplace else to sleep but outside is not an Eighth Amendment law violation; it is not cruel and unusual. Neil Gorsuch — and I wish I was making this up — literally analogized sleeping on the street in Oregon because you have no place to live to campers, or perhaps people who are camping out because they wanted concert tickets. It’s the same thing, according to Neil Gorsuch. And so, just like the city or the county can say, “Hey, you can’t camp outside Ticketmaster just because you really want to see Pearl Jam,” they can use that same law to take homeless people, who have no place else to go, and send them to jail, as well. Neil Gorsuch found no difference between that.

It is a cruel decision. And I would go so far as to say it is an evil decision. There is something — there is something broken. There is something broken with people who look at people who have no place else to go, who look at people sleeping on the street, who look at people sleeping in their cars, because they have no homes, and say, “You know what? Get that person in a jail cell. That’s where they belong.” There’s something broken about people who do that. And, unfortunately, six of those broken people control the Supreme Court for the rest of my natural life.

AMY GOODMAN: Elie, before we go, can you lay out what’s at stake in today’s highly anticipated ruling on former President Donald Trump’s bid for immunity from his federal indictment for trying to subvert the 2020 election and stay in power? And again, even the significance of them putting this to today, extending the term? It’s something that they could have decided months ago.

ELIE MYSTAL: Yeah. Speaking of broken and damaged people, right? Yeah, look, Donald Trump has already won. Jack Smith asked the Supreme Court to resolve this issue on December 11th of 2023. The Supreme Court has had all of this time to deliberate and consider whether or not Donald Trump is absolutely immune from everything, which itself is a ridiculous position. And even if they disagree with that position here on June [sic] 1st at the end of the term, Donald Trump has already won, because Donald Trump only made that ridiculous, unconstitutional, ahistorical, stupid argument in order to delay the commencement of his trial until after the election. And because the Supreme Court is only ruling on it today, that goal has already been accomplished. All that we’re waiting for today is the kind of — the shouting.

I do not think that today the Supreme Court will agree that presidents are absolutely immune from everything. What I do think they’ll say is that presidents are immune for some things, but not other things, but who can say which things are which? And they will send the case back down to the lower court for some other ruling on what acts, official or unofficial, a president might, could be immune for. That ruling will have to happen in the lower courts. That will get appealed to the D.C. Circuit Court of Appeals. That will get appealed to the Supreme Court. And so, if Donald Trump loses the next election, there is a high chance that this time next year we will be sitting right here, Amy, waiting for the Supreme Court to rule on the appeal of Donald Trump’s appeal. And only then will we see whether or not Trump can be prosecuted for his alleged crimes that he committed on January 6th, 2001 — 2021, when he tried to overthrow the government.

AMY GOODMAN: Elie Mystal, I want to thank you for being with us, The Nation's justice correspondent. We'll link to all your pieces. He’s the author Allow Me to Retort: A Black Guy’s Guide to the Constitution. And we also want to thank Mustafa Ali, former head of the environmental justice program at the Environmental Protection Agency, now executive vice president of the National Wildlife Federation and CEO of Revitalization Strategies.

Next up, “How the Publisher of The Washington Post Allegedly Helped Cover Up a Scandal.” That’s the headline of our guest’s latest piece. We’ll also talk about the Biden-Trump debate fallout. Stay with us.

[break]

AMY GOODMAN: “When a Plant Is Dying” by Squirrel Flower. In March, the band joined other musicians in pulling out of the SXSW Music Festival to protest its, quote, “ties to the defense industry and in support of the Palestinian people,” unquote. Last week, South by Southwest announced, quote, “After careful consideration, we are revising our sponsorship model. As a result, the US Army, and companies who engage in weapons manufacturing, will not be sponsors of SXSW 2025.”

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