The Supreme Court’s contentious oral arguments this week offered a reminder that while the public is focused on Donald Trump’s election cases, the court’s actions this spring will equally have consequences for a host of established Washington rules governing American life.

Conservatives on the Supreme Court are accelerating their efforts to reform the way the federal government protects Americans, whether from air pollution or unfair financial practices.

Although the decisions will not be published until later this year, the liberal justices’ frustration was palpable this week, when their harsh comments from the court drew attention to the right-wing majority’s pattern of diminishing environmental, public health and and consumers. .

In recent years, judges have struck down rules on power plant emissions, student loan forgiveness and Covid-19 precautions. They are hearing a series of new cases in the current session that seem destined to reinforce the current trend that breaks with decades of precedent.

Justice Elena Kaganwho has warned in outside speeches about public mistrust when legal rulings change simply because of new appointments, brought that emphasis to the court Tuesday.

He posed a scenario involving a trade association that sues over regulation, loses, and then “10 years later… looks around and thinks, you know, the environment is more hospitable. The judges have changed. Let’s try again.”

The court’s actions in cases beyond Trump’s election controversies will illuminate another effect of the former president: The conservative juggernaut is only possible because of his three high court appointees: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. (Since Barrett’s confirmation in 2020, a 6-3 conservative dominance has taken hold.)

The court’s transformation and new cases challenging federal power — over consumer fraud, disputes at the Securities and Exchange Commission and environmental policy — have emboldened conservative advocates and wealthy business interests who say administrative power has played a role. in American commerce.

Liberals and public interest advocates respond that federal agencies provide crucial expertise and resources to protect the public good. One dispute, to be heard on March 26, centers on the Food and Drug Administration’s ability to declare that an abortion pill, mifepristone, is safe and effective for use nationwide.

Another major case, filed in January, tests a 1984 decision, Chevron v. Natural Resources Defense Council, that has given U.S. agencies wide latitude to interpret congressional statutes and enforce policies. The case has shaped a series of court rulings on agency policies, far beyond the environmental realm, and has become one of the most cited rulings in Supreme Court history.

Kagan addressed Chevron’s milestone this week, telling a Justice Department lawyer defending a Federal Reserve deadline for filing lawsuits: “There’s obviously another big challenge in how the courts review the Fed’s action.” agency before this court. … (If) if Chevron were rolled over, how would that affect what you’re talking about here?”

Assistant U.S. Attorney General Benjamin Snyder responded that a decision for the company suing over a Federal Reserve rule “would magnify the effect of any other decision that changes the way this court… (has) addressed the administrative law issues, because it potentially means that those changes would apply retroactively to every regulation that an agency has adopted in the last, I don’t know, 75 years or something like that.”

When that challenge to Chevron’s principle was heard last month, Gorsuch suggested it unfairly tilted the balance toward the agency’s power. “The government always wins,” he said. “Chevron is exploited against the individual in favor of the government.”

In the new case heard Tuesday, brought by truck stop owners in North Dakota, Gorsuch sounded sympathetic. The Corner Post is protesting a Federal Reserve rule adopted in 2011 that caps the debit card fees merchants earn with each transaction.

It maintains that the limit violates a federal ban on “arbitrary and capricious” actions. The Federal Reserve, defending the rule, said any lawsuit against it should have been filed within the six-year statute of limitations. Corner Post, which began operating in 2018, argues that the clock should start ticking when a regulation affects a company.

The Fed won in the lower courts, but the justices agreed to hear the appeal and conservatives seemed receptive to the Corner Post’s argument that the clock starts ticking when legal harm occurs to a particular plaintiff.

“The normal rule,” Gorsuch said at one point, “is that the plaintiff’s injury is the time of accrual.”

Chief Justice John Roberts expressed a similar sentiment, telling Snyder: “You have an individual or an entity that is harmed by something the government is doing, and you say, well, that’s a shame, you can’t do anything about it because other people had done it.” made”. six years to do something about it…” The chief justice echoed the Corner Post’s argument that “everyone is entitled to their day in court.”

The liberal justices clearly had a different opinion.

“I am concerned that if you win, all agency rules that exist today will be subject to some type of challenge in this way,” Judge Ketanji Brown Jackson told Corner Post attorney Bryan Weir. “Why wouldn’t this be extraordinarily destabilizing? I mean, we’ve set rules that govern all kinds of industries, the healthcare industry, the financial industry, and people have adapted to them. There are experts who understand how the law works and companies do the same. If I understand you correctly, every new company created in an industry can suddenly bring a challenge that could risk… invalidating the entire basis of the industry.”

Weir rejected “any opening of the floodgates or parade of horrors because… most parties are harmed the day a regulation is issued.”

EPA rules under fire

Liberal criticism was even more pronounced in Wednesday’s case that arose from litigation against a Biden administration policy that imposes strict emissions limits on power plants and other industries in upwind states. Called the “good neighbor” rule, the EPA program aims to reduce smog and air pollution that crosses state lines and threatens public health.

A lower US appeals court, the DC Circuit, specializing in these types of administrative law disputes, had allowed early implementation of interstate restrictions while litigation brought by states and power companies unfolds. (Compliance with emissions limits would be mandatory in 2026).

Three Republican-led states and electric industry groups turned to the high court, seeking immediate relief and asking that any implementation be banned. In December, the justices took the rare step of scheduling oral arguments on the simple question of whether the “good neighbor” rule should be suspended. These preliminary questions are almost always resolved without arguments.

This week’s hearing sounded something of a fait accompli, as a majority of conservatives seemed set to block policy that would require power plants in designated states to install technologies to reduce nitrogen oxide emissions wafting into the air. downwind states.

The right-wing judges noted that the EPA’s plan originally applied to 23 upwind states, but now covers only 11 states because of court decisions arising from separate litigation against the EPA. Roberts referred to “the hundreds of millions of dollars in costs” incurred.

Malcolm Stewart, U.S. deputy attorney general, told the court that the EPA anticipated that the states covered would change over time, adding: “EPA devised the requirements for each state so that they would be workable if they ultimately instance a smaller or larger set of states were accepted. covered.”

The liberal justices protested, probably in vain, at the court’s handling of the case.

“So we’re here because of your emergency relief motion, and it’s pretty extraordinary,” Jackson told Ohio Deputy Attorney General Mathura Sridharan, adding that the D.C. Circuit had not yet heard the merits of the case. “So I’m trying to understand what the emergency is that warrants the intervention of the Supreme Court at this time.”

“At the breakneck speed we are going, to comply with an illegal federal rule, we are spending immense sums, both the states and our industries,” Sridharan said.

Jackson later observed: “Surely the Supreme Court’s emergency docket is not a viable alternative for all parties who believe they have a meritorious claim against the government and do not want to have to comply with a rule while challenging it.”

Judge Sonia Sotomayor suggested that it was “a reversal of the normal rules” to try to “avoid the same court (the D.C. Circuit) that will make the substantive decision” on the EPA plan.

Kagan focused on the many preliminary issues that lower court judges would normally have weighed before the case reached the justices.

While throwing questions at Catherine Stetson, a representative of the industries, Kagan added: “I don’t want to put too much pressure on you with this because it’s not your fault that this is presented in a strange position.”

The implication was that any “blame” falls on Conservative colleagues. And if oral arguments were any guide, judges who previously limited the EPA’s ability to implement air and water protections will also suspend the “good neighbor” policy.

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By Sam