Before I dive into a closer look at two thematically linked cases, I want to make something clear: If Chief Justice John Roberts were standing on front of me, on fire, begging me to piss on him to put it out, I would say, no, that's the Court's prerogative, I can't intrude on that.
The two cases are Loper Bright v. Raimondo, and Corner Post v. Federal Reserve, and together they establish the principle that the courts are in charge of federal regulations, not the executive branch and the agencies charged by law with making those regulations, and these regulations may be challenged at any time by anyone, no matter how long those regulations have been in place.
When coupled with the potent and perfected weapon of judge shopping that the right-wing uses with such enthusiasm, the power of democratic Presidents past and present has been crippled. For instance, under Corner Post, there's nothing to stop Judge Kacsmaryk from re-opening the challenge to the mifepristone approval of 2000; after all, the plaintiff organization was not "injured" until the organization came into existence.
Since there is no corresponding lawlessness on the democratic side -- no massive legal movement, no indoctrinated judges, no pattern of behavior, no supermajority on the Supreme Court -- there is no corresponding loss of power to Republican presidents in the future.
Before I go any further, and before we give into despair: What can we do? Unlike the presidential immunity case, this can be resolved with statutory changes. This means that we must make Congress functional again. And that means electing Democratic members of Congress in the House, where a simple majority is sufficient, and electing young Democratic senators who are willing to overturn the filibuster, and then riding them as constituents with the demand that they modify the Administrative Procedures Act and related laws to make clear that technocratic agencies are responsible for technocratic regulations, not judges, and that final rules become genuinely final with the passage of time.
So, onto the cases. It is instructive to note that for all the talk about the grand principles that these cases turn into anarchy, these cases are penny-ante bullshit. That's what the Federalist Society and its associated projects do: They find -- or make up, as in the Colorado gay wedding website case -- some half-ass case and proceed to contort it into a case that attacks a grand principle.
Loper Bright is about federal observers on fishing boats. Under the Magnuson-Stevens Fishery Conservation and Management Act, the National Marine Fisheries Service administers the fisheries in US marine waters in order to ensure that we don't vacuum up every fish and turn the ocean into desert. It's been sort of successful. E.g. the flounder fishery in Alaskan waters is very healthy, but the Grand Banks are sitting at less than 10% of historic catches, IIRC.
Anyway, under the Act, the NMFS has set regulations that (some) fishing boats must carry federal observers, and sets fees to pay for the observers. Loper Bright Enterprises and others don't want to pay the fees, because they have listened to evil advisors. Or, I dunno. Now, granted -- life on a fishing vessel is hard, and the market does not permit fishers to receive fair value for their labor, which is an issue throughout our economy. But we know as clearly as we know anything that without those observers, fishers will vacuum the oceans empty.
The Act does not lay any of this out; it delegates authority to the NMFS, which has made regulations to implement the Act's goals of not running out of fish. When Loper Bright et al challenged the fees, they lost in the lower courts, under the doctrine of "Chevron deference". Now, Chevron deference dates from a Reagan-era case, and it says, essentially, that as long as an agency justifies its regulations in a reasonable fashion that's compatible with the law behind the regulation, the courts should defer to the agency, which presumably has experts who have made their careers working in the industry being regulated and therefore know what's possible and what's reasonable. Since judges aren't any of that, it's not a good idea to second-guess those who are.
The decision here says that's bullshit; judges are the only people who can have final say over what a law means and whether a regulation is a reasonable way to achieve it.
It is breathtaking in its arrogance, and in its arrogating of power away from the executive to the judicial.
Fun fact: Justice Roberts speaks of Chevron being decided "by a bare quorum of six Justices". Guess what the margin in this decision is.
Also fun fact: Chevron was decided by a right-wing Court in 1984 when Republicans controlled the executive, and overturned by a right-wing Court in 2024 when Republicans controlled the courts. Yes, this is deeply, fundamentally, partisan. It is impossible to consider this case without considering the politics.
Roberts' opinion anchors its lawlessness in the Administrative Procedures Act, which says that courts will decide questions of law -- which is fair enough, but this case makes it clear that the Court thinks that everything is a question of law. This is why Congress could fix this; all it has to do is put Chevron deference into the APA.
Since as soon as Clinton was elected, the right-wing Court started chipping away at Chevron, Roberts concludes that there has been no "reliance" on Chevron, so there is no reason not to explicitly overrule it. Which is brilliant: All you have to do is hate on something long enough, and the fact that you hate it becomes justification to overturn it. But the fact is that agencies and Congress have been operating under Chevron for 40 years, so this is not a little change, this is a huge change. And, as we'll see, it opens a hunting season on every regulation that will overwhelm the lower courts, or empower courts like the Fifth Circuit to enact the 2025 Project knowing that the Court will not have the ability to respond to every case.
Roberts for six, Kagan for three. Thomas solo concurrence to rant about separation of powers; Gorsuch solo concurrence to attack stare decisis as a principle. There's a reason why Gorsuch -- for all that he is sometimes principled -- is a key member of the anarchist wing of the Court. He would blow up any inconvenient precedent, and do so while proclaiming how principled it is to do so. You know how some left-wing activists fail to achieve anything because nothing is sufficiently principled to satisfy them. That's Gorsuch's relationship to precedent: No precedent is pure enough to survive.
Kagan is, of course, completely persuasive: Courts are not political and do not answer to voters, and Congress does not and cannot give power to the judiciary branch to execute its laws, and agencies have expertise that court do not have. Etc., etc. Any practitioner could write this opinion, as futile as it is.
The separation of powers that the majority invokes here is contrary to our understood theory of government: Instead of Congress binding agencies to law and granting them power to executive, and agency overreach checked by the courts, with the courts prudentially checking themselves and Congress having the power to check and rebalance by rewriting the law, in this case, the Court takes advantage of Congress's inability to act to declare the entire judicial branch unchecked by any prudence.
So every federal regulation is now subject to the whim of any district judge in Texas or Louisiana.
The statute of limitations for challenging a regulation that has reached the Final Rule stage is six years.
Corner Post throws that out.
Corner Post is about credit card fees. Corner Post is a truck stop in North Dakota, opened in 2018. Credit card companies charge "interchange fees" for moving money from banks to merchants. Those fees were standardized under Dodd-Frank in 2010, which gave the Federal Reserve the authority to cap the fees, which became a final rule in 2011. You already know the critical point: This is an agency action. Under the APA, from the time the rule became final, there was a six-year statute of limitations to challenge it, which expired before Corner Post opened. (Industry groups challenged the regulation at the time, and lost.)
Now, if you're me, you say "Corner Post had fair notice of the business environment it was to operate in, and is presumed to have known that it would be subject to the interchange fees under the final rule". That's how law works. If Corner Post is so successful that it "has paid hundreds of thousands of dollars in interchange fees" in the six years since its opening, the interchange fee rule is not really impeding their business. If it didn't want to pay interchange fees, it didn't have to open. If it didn't like interchange fees, it could lobby Congress or the Federal Reserve to change the rule.
But I am not a Federalist Society judge, and I am not part of a sexumvirate dedicated to granting itself power.
Corner Post joined an industry group that was continuing to challenge the regulation, and claimed that the six-year limit didn't apply to it, because its claim didn't accrue until it paid the first interchange fee.
The Court holds that Corner Post was injured by the rule, and because its injuries were within the six year limit, it has standing to challenge the rule. Barrett for six.
This is a technical decision about when a claim accrues; it is very inside-law. That technical aspect is probably why Barrett wanted to write the opinion, or why Roberts assigned it to her; it would have appealed to her professorial nature.
Kavanaugh has a long solo concurrence reiterating that Corner Post was injured (it's not subject to the rule, the bank and credit card companies are, but it must pay the fees), and a long discourse on the remedy available, arguing that vacatur of the regulation is appropriate. He's writing presumably because some of his colleagues like Gorsuch have been inveighing against nationwide injunctions and overbroad vacaturs.
So, Greg, why is this a deal? It's a technical decision about when claims accrue. That's something only lawyers could love, surely? I think you can probably work it out.
If a claim accrues for purposes of challenging a regulation when a newly-created entity is subject to the regulation, then you can challenge any regulation, no matter how old or entrenched in the industry, simply by creating a new entity.
That is, in part, what happened in the mifepristone case: A new "physicians' group" was formed in Amarillo, solely that it could raise a new claim against the FDA's actions (and sue specifically in Amarillo). You could do the same thing with any claim against any regulation. If the petrochemical industry wanted to put lead back in gasoline, it just runs up a new refinery subsidiary that wants to market "no-knock gasoline"; now that subsidiary has been injured by the regulation against lead, so it can sue.
In combination with Loper Bright, that courts need not pay attention to agencies' choices in response to gaps and ambiguities in empowering laws, you now have courts with final authority over anything the federal government has ever done, regardless of the passage of time.
The Court is not empowering Trump's coup; it is empowering its own.
