LINDSAY MAST, HOST: It’s Wednesday the 15th of May, 2024. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Lindsay Mast.
MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Washington Wednesday.
Over these last months, we’ve covered big Supreme Court cases over issues like abortion, guns, presidential immunity, homelessness, and online censorship. No doubt some of the final decisions will be unpopular with some people.
MAST: But, as Justice Brett Kavanaugh told a law conference on Friday, time can turn unpopular decisions into cherished parts of American law. Speaking to justices and clerks from the Fifth US Circuit Court of Appeals, he pointed to the Warren Court of the ‘50s and ‘60s. It expanded civil rights in ways that were unpopular at the time, but are now well respected, in particular the decision in Brown v. Board of Education.
REICHARD: One of the biggest issues before the court this term is what’s known as Chevron deference. It allows federal agencies to take an ambiguous law and write unambiguous rules. The doctrine arose from a landmark case in the 1980s called Chevron v Natural Resources Defense Council.
MAST: Just last year, Biden administration agencies issued more than 3,000 rules. Compare that to only 65 bills from Congress signed into law.
Several justices on the Supreme Court have said it’s time to clip Chevron back.
REICHARD: Well, joining us now to talk about this and other cases is Alexander Volokh, a law professor and former Supreme Court clerk. He now teaches at Emory University School of Law.
Professor Volokh, good morning.
ALEXANDER VOLOKH: Good morning.
REICHARD: How do you assess the trouble with the Chevron Doctrine from a legal analysis perspective?
VOLOKH: That is an extraordinary doctrine. Usually, we assume that judges are completely neutral between both sides, even when one side is the government, the judges read the statute, and they come up with their best view of what the statute means. If it’s ambiguous, they have to consider everything and figure out what reading is best. The Chevron doctrine says no, you actually have to accept the government’s interpretation. And that puts a huge thumb on the scales on the side of the government. And over the last 20 years, the Supreme Court has been gradually limiting the scope of Chevron. And basically saying that there are many cases where we should not defer to the government; rather, judges should use their independent judgment. Of course, you should listen to the government, government agencies might have expertise. So it’d be irresponsible to not consider what they think. But the idea that you should allow the agencies to have binding authority as to the interpretation of a statute that Congress passed? That just seems like a recipe for the growth of the executive branch. And so it’s not surprising that many justices today are willing to limit or in fact, even throw out entirely, the Chevron Doctrine.
REICHARD: This Supreme Court term several challenges to Chevron have come before the court. Can you roughly sketch the facts of one and how you think it might go?
VOLOKH: So one of the cases involves an agency called the National Marine Fisheries Service. And the National Marine Fisheries Service, as its name indicates, regulates fishing and whether people are fishing consistently with their permits, and so on. And sometimes there are fishing boats that have to have observers actually on the boats to make sure that they’re following the proper regulations. Well, one big question is who has to pay for the observers? Does the fishing boat have to pay for the observers? Unfortunately, Congress did not express itself clearly on this question. And this is a case where the evidence kind of goes both ways. But the government said, No, we don’t have to pay for the observers, you guys have to pay for the observers. So the question is, should we take the government’s word for it? Or rather, should judges use their independent judgment? And so that’s really a question where Chevron potentially is going to make a difference. Because if Chevron applies, then you have to accept the government’s reading as long as it’s reasonable. But if not, judges have to decide for themselves.
REICHARD: It’s always an educated guess, I know, but based on how the justices’ questioned lawyers in those oral arguments…how do you think it’s going to go?
VOLOKH: I don’t know whether there’s a majority for overruling Chevron outright. There are various ways that the justices could limit Chevron without overruling it. But it does seem that there’s clearly a majority for some kind of limitation of Chevron, if not an overruling entirely.
REICHARD: Ok, now let’s move on to another big issue before the high court: Abortion, again. The case is FDA versus Alliance for Hippocratic Medicine. Remind us of this one?
VOLOKH: Well, this is a case where there’s an abortion drug that had been approved by the FDA. And the challengers say that it should not have been approved by the FDA because they have arguments that it’s not safe. But that’s not really relevant. The real legal question is, can these people sue, to force the FDA to withdraw the approval of a drug? And this involves a very important doctrine called standing. If you want to sue in federal court, you not only have to have a good argument for that something is illegal, but you yourself have to be injured by the decision that you’re challenging. And it has to be such that the decision that you’re challenging has injured you and if you win, then that injury gets taken away. The problem is, who exactly is injured by the FDA approval of a drug? No one has to take that drug if they don’t want to. And the challengers are these doctors who say, well, because the drug was approved, these women take the drug, and then they have side effects. And then they come into my emergency room, and then I have to take care of them. Now, even if you accept all of that, how can the blame be laid at the feet of the FDA? Because when the FDA approves a drug, all it’s saying is the drug is legal, we will not prosecute you if if you prescribe it or if you use it. That doesn’t make anybody take it.
REICHARD: Alright, we leave that one and move on to another case with huge implications: Trump v United States. This asks whether former President Donald Trump has immunity from prosecution from events of January 6th, 2021. What do you see as the likely outcome?
VOLOKH: Yeah, well, this is very difficult, and it’s hard to exactly read the tea leaves on this. I think everyone accepts that there is some kind of immunity for the President. The question is just how far does that sort of immunity extend? I think regardless of our politics, we all have to be concerned about if we had a decision that said presidents have no immunity for anything, we would have to be really concerned about that. Because on the one hand, you know, maybe if we hate Trump, we might say yes, rah, rah, put Trump in prison. But we have to consider what if Trump wins? And what if Trump decides to prosecute Biden? You know, every president does something that’s not only controversial, but something which if a private individual had done it would have been criminal. So could you prosecute Biden for saying that, “Oh, we don’t think that you have secured the border well enough. And so you’re responsible for inviting illegal aliens into the country. Or we think that you are responsible for genocide in Gaza, because you have supported, because you have provided weapons to the Israelis.” And you know, there, there’s so many things where a president who is out to get somebody, especially his former political opponent, would be able to bring all sorts of unjustified prosecution. So there has to be some kind of immunity. The question is just how far does that extend? And so I think even though the justices think that there should be some amount of immunity, but I think there’s a lot of disagreement over how to phrase an appropriate rule, which is going to balance the need to hold presidents accountable with–at the same time–the need to prevent unjustified prosecutions of presidents. And I think both of those are kind of important problems on both sides of the scale.
REICHARD: Final question here, Professor, back to Justice Brett Kavanaugh’s remarks at the Fifth Circuit conference. He said the Supreme Court should accept more cases for review. They average around 60 a year right now, compared to the more than 100 or so the Supreme Court took in the early ‘90s. Justice Kavanaugh has publicly spoken up about cases the high court declined to hear this term…from split court decisions to conflict over Congressional law. Things like that. What do you think of Kavanaugh’s assessment of the court’s caseload?
VOLOKH: I think this is a question that any sort of Supreme Court has to deal with. And there is such a thing as too much. So I think that where the Supreme Court does the greatest job is in resolving big issues involving important statutes that come up over and over where there’s been disagreement between lower courts, and where they can express principles that will really be useful in guiding lower courts in the future and clarifying what the law is. Now, when I was clerking 20 years ago, the court would take about 80 cases, and yet now it’s even lower at about 60. I would like to see the court take more cases. But there’s an argument that taking fewer cases is better for purposes of having higher quality decisions in those cases that they take. You know, I’m inclined to agree with Kavanaugh, but it’s a difficult question.
REICHARD: Have to leave it there. So much to talk about. Alexander Volokh is a law professor and former Supreme Court clerk. He now teaches at Emory University School of Law.
Professor, thanks so much.
VOLOKH: Thanks very much.
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