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On One Key Regulatory Precedent, Amy Barrett Is A Cipher

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October 21, 2020

Speculation about how a Supreme Court Justice Amy Coney Barrett would rule has focused on Roe v Wade and Obamacare (not to mention questions arising n a contested election), but author and commentator Christopher Leonard, writing in the New York Times, notes she likely will weigh on another precedent, one extremely consequential for business interests. That’s the 1984 Chevron decision (Chevron U.S.A. Inc. v. Natural Resources Defense Council), the “lodestar legal case” in the world of corporate law, according to Leonard. Chevron gives regulators, like the EPA, wide latitude to create protocols not spelled out in the enabling legislation.

It’s come to be called “Chevron deference,” and it’s considered a travesty by free market conservatives like Koch general counsel Mark Holden, who in an op-ed in The Hill, characterizes it as a requirement for judges to defer to bureaucrats, creating in the process an administrative state that’s at odds with “our carefully crafted constitutional order.” As Holder sees it, under the aegis of Chevron deference, “an agency issues regulations that have the binding force of law; it enforces those regulations; and it prosecutes and penalizes those who run afoul of them – a dubious separation-of-powers trifecta.”

That sounds like something that might resonate with a Justice Amy Coney Barrett, but according to Leonard in his NYT piece, it’s not clear how she might field this one. “Barrett,” he writes, “has publicly said that her judicial philosophy is the same as former Justice Antonin Scalia. As Lisa Heinzerling, a law professor at Georgetown, told The Washington Post, what this signals depends on which version of Justice Scalia Judge Barrett agrees with. Justice Scalia was a supporter of Chevron deference early in his tenure, but became more skeptical of it over time as he defended the power of courts to undo or weaken acts of Congress.”

 

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