Journal Sees No Threat To “The Administrative State”
To Their Credit, They Published My Rebuttal
NJ Law Journal Is Out Of Touch With The NJ Bar And NJ’s Progressive Legal Tradition
The NJ Law Journal editorialized on Monday (7/15/24) on the recent controversial US Supreme Court’s decision that struck down the “Chevron” doctrine regarding judicial review and deference to administrative agencies involving complex interpretations of science and legislative language.
The NJ LawJournal editorial concluded: (emphasis mine)
… as years of New Jersey experience appears to teach, it does not result in an overly intrusive role for the judiciary in the executive function of implementing legislative programs. Without more, we are as yet unprepared to join those who believe that the overruling of Chevron in and of itself will result in the disassembly of modern administrative regulatory programs.
The NJLJ editorial downplayed the significance of the decision, ignored the intellectual history and policy implications, and basically misled readers.
Although I am not a lawyer, I’ve long been a regulatory practitioner and advocate who deals in the day to day regulatory weeds of the Court’s decision. I fully understand how these esoteric legal doctrines impact day to day life of the American people, across a broad range of issues.
I’ve written about these issues many times over the years. I’ve long warned and predicted that the Court would strike down “Chevron” as part to their ideological attack on the “administrative state” and right wing efforts to kill the last vestiges of the New Deal.
So I responded with this Letter to the Editor, which they surprisingly printed today:
Dear NJLJ – As a former DEP regulator and environmental advocate, I read with interest your editorial: “New Jersey’s Experience Shows That ‘Chevron’ Deference Not Essential to the Administrative State”.
I’d like to make one observation and ask one question:
You claim that Loper means: “the amount of deference to agency expertise depends on whether the issue at hand actually involves such expertise.”
Where does the opinion actually say that? I came to exactly the opposite conclusion, i.e. that the Court had absolutely no duty to consider the Agency’s interpretation, even in mixed science-law cases, which is the most typical situation.
Second, the editorial concludes by asking for “more”: “Without more, we are as yet unprepared to join those who believe that the overruling of Chevron in and of itself will result in the disassembly of modern administrative regulatory programs.”
May I suggest that “more” evidence includes: 1) several recent decisions that overruled major EPA regulations, including under the “major questions” doctrine”: 2) the Court’s attempts to revive the pre-New Deal “non-delegation doctrine: 3) longtime criticisms by Justices Kavanaugh and Gorsuch of “the administrative state”; and 4) longstanding Federalist Society and other legal advocacy attacks on the “administrative state”, which is important given their role in Court appointments and membership of Justices.
Finally, although not a technical matter of law, the editorial fails to note that key NJ environmental programs are federally delegated (Clean Air and Clean Water Acts). Accordingly, the likely rollbacks of federal laws will impact NJ DEP programs and the environment in NJ.
Respectfully,
Bill Wolfe
And I didn’t even mention Trump Project 2025.
Perhaps the NJ Law Journal is out of touch with the NJ Bar and NJ’s progressive legal tradition.