Supreme Court is curtailing the power of Congress

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In his column dated July 2, U.S. Rep. Jared Golden discussed the fate of democracy should Donald Trump win in November. While I appreciate Golden’s faith in our democracy, he would be wise to take notice of the behavior of the judiciary, the third branch of government, in maintaining our democracy. (This leaves aside the challenges of a divided government.) I believe the current supermajority of the Supreme Court, three of whom were put in place by the former president, is usurping the very congressional power on which Golden relies.

The recently decided case of  Loper Bright Enterprises v. Raimondo overturned 40 years of precedent set by the Chevron case. Under Chevron, when Congress created a law that was vague or ambiguous, Congress empowered experts at various agencies to interpret policy or technical questions (think: EPA, FAA, FDA or the Department of Health and Human services to name but a few). These agencies have the expertise to answer challenging issues. The Supreme Court has ruled in Loper Bright Enterprises that questions raised by a vague or ambiguous law should be answered by the courts instead of leaving interpretations to these specialized agencies, thus undermining Congress’ authority. As Justice Elena Kagan points out in her dissent, the courts and not the experts will now have to answer questions like, “When does an alpha amino acid polymer qualify as a ‘protein’?”

Now issues that impact our daily lives such as food safety, drug safety, airline safety and environmental safety will be decided by the courts. The courts now have the power to decide all manner of scientific, technical and policy decisions when a congressional law is ambiguous, despite a lack of training or expertise in these areas. Golden is correct that Congress is the body of the government that makes the laws. But this Supreme Court is fixated on curtailing Congress’ power. As Kagan puts it, “This very term presents yet another example of the Court’s resolve to roll back agency authority, despite congressional direction to the contrary,” and “A rule of judicial humility gives way to a rule of judicial hubris.”