Sunday, December 08, 2024

How billionaire Charles Koch’s network won a 40-year war to curb regulation. (WaPo)

I was in law school after the Supreme Court adopted the Chevron deference doctrine. I did not like it then, and I don't like it now.  Our Nation got along fine without it.  Courageous whistleblowers and other party litigants have lost administrative law cases because of this outrageous case, now reversed.  Don't often agree with KOCH INDUSTRIES and its cat's paws, but on this occasion, they were right.  What do you reckon?


How billionaire Charles Koch’s network won a 40-year war to curb regulation

A seismic Supreme Court ruling has ushered in a new era of diminished federal power. The next Trump administration hopes to capitalize on it.

22 min
(Natalie Vineberg/The Washington Post; David Zalubowski/AP; Supreme Court; iStock)

The 2019 Seafood Expo North America in Boston featured an oyster-shucking contest, whole squid on ice and some surprising attendees: attorneys from the powerful political network of Charles Koch, a billionaire who has spent decades and millions fighting government regulation.

They weren’t there for the seafood samples. They were fishing for fishermen, seeking stories of boat captains upset by federal regulations that would soon require herring fishermen to pay for onboard government monitors.

The outreach demonstrated the unusually broad coordination by the Koch network to challenge a bedrock legal precedent that had touched many aspects of American life — from drugs and the environment to banking and workplace safety.

That effort culminated in June when the Supreme Court struck down the principle known as Chevron deference, which for 40 years had required judges to give federal agencies significant latitude in implementing laws in areas where Congress did not give specific guidance.

Other Supreme Court decisions last term garnered more attention, including on abortion pills and presidential immunity. But many legal experts say Chevron could be one of the most significant rulings of this generation because of its sweep.

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The legal precedent had been cited in more than 18,000 decisions over the past four decades. Its demise has unleashed a new flood of challenges to the regulatory power of federal agencies, and Elon Musk and Vivek Ramaswamy seized on it last month as a key tool in their quest to slash thousands of federal jobs and dismantle bureaucracy as part of the incoming Trump administration.

This is the inside story of how a network of interconnected organizations — with common employees and funding from Koch and wealthy like-minded donors — spent years strategizing how to take down Chevron, ultimately finding the test case they needed to upend decades of precedent.

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The Washington Post interviewed dozens of lawyers and strategists involved in the Chevron case and others, reviewed hundreds of pages of tax records, traced millions in funding and reviewed a recording of Koch-aligned groups discussing the case in private.

The reporting provides fresh detail about how the network supported the legal fight against Chevron. Koch-funded charities pumped nearly $18 million in recent years into the New Civil Liberties Alliance (NCLA) and Cause of Action, the public interest firms that brought the lawsuits.

The battle against Chevron was often publicly portrayed as the saga of a group of scrappy fishermen taking on the federal government. Behind the scene, NCLA and Cause of Action drove the case, identifying the regulation to challenge, recruiting plaintiffs and drafting one lawsuit before the regulations went into effect.

“We knew we had to have everything in place beforehand: clients signed, complaint written, ready to go — so when this rule came out, we could sue immediately,” said James Valvo, executive director of Cause of Action.


Early on the morning of Oct. 4, 2023, the fishing vessel Gannet, part of the Lund’s Fisheries fleet, heads out to sea for a day of fishing. The Supreme Court case, Loper Bright Enterprises, Inc. v. Gina Raimondo, involves herring fishermen in New Jersey challenging federal government fees, but it has much broader implications for the power of the government to regulate the environment, financial sector and ensure consumer protections. (Sarah L. Voisin/The Washington Post) 

The 6-3 Chevron ruling was one of a string of anti-regulatory wins at the high court — often powered by Koch money and groups — that have curbed federal regulatory power in ways not seen for decades.

Supporters say the decisions are a necessary correction to a federal government that overburdens business and stifles innovation. Critics say dismantling agency guardrails will make America less safe, sicker and more polluted.

Charles Koch declined to answer questions, but a spokeswoman arranged an interview with officials with Stand Together, a nonprofit organization founded by the billionaire. Those officials said the role Koch’s network played in Chevron’s demise was no different from that played by other groups across the political spectrum, which also try to shape policy and legal challenges.

“Chevron is an example of one way constitutional government was breaking down,” said Casey Mattox, the group’s vice president of legal strategy. “What Chevron was saying, it’s not really the courts that interpret the laws, it’s the executive branch.”

Days before the Supreme Court ruling was issued, an alliance of groups that have received Koch funding for years was already looking beyond the demise of Chevron, according to a recording of a conference call reviewed by The Post. Participants discussed a “hit list” of regulations to challenge, using a surprising road map: legal briefs filed to the Supreme Court by Chevron supporters that documented how its fall could endanger particular regulations.

“Are we ready?” asked the conference call leader.

The preparations, as it turns out, had begun many years earlier.

Slaying the ‘beast’

Koch and his brother David, who died in 2019, have worked since the early 1970s to create a constellation of foundations, political action groups and legal organizations that reflect their libertarian beliefs, aimed influencing public policy, elections and law.

“We have confiscatory taxation, wage and price controls, commodity allocations programs, trade barriers, restrictions on foreign investments, so-called equal opportunity requirements, safety and health regulations, land use controls, licensing laws, outright government ownership of businesses and industries and many more interventions,” Charles Koch once said, in a 1974 speech. “No advocate of free enterprise should confuse all of this with a free, capitalistic economy!”

Christopher Leonard, whose book “Kochland” explores the business empire, said those views were deeply held, but also served the bottom line of Koch’s holdings in oil, timber, agriculture and other sectors. Koch Industries has faced tens of millions in fines and has repeatedly tangled with regulators over the decades. It is the nation’s second-largest privately held company.

Leonard said Charles Koch applied his boardroom skills to his nascent political project.

He was a guy whose day job was rooted in managing highly, highly complex systems — oil refineries, natural gas refineries, pipelines, oil shipping tankers,” Leonard said. “He really has a mind for seeing how complex systems interact at different points and figuring out how to get into a complex system and make a lot of money. I say that, because his approach to politics is exactly the same way.”

The Koch vision eventually dovetailed with one offered by the one of the intellectual architects of Chevron’s dismantling, Columbia University professor Philip Hamburger. Hamburger laid out his case against Chevron in a 650-page tome published in 2014, arguing that the regulatory powers exercised by federal agencies since the New Deal have no constitutional basis.

The regulatory state had become a “beast” threatening to devour America, Hamburger said in a 2022 speech marking the NCLA’s fifth anniversary. “It just eviscerates the Bill of Rights. It takes a knife to it just as you gut a fish.”

The dramatic language crystalized the alarm of conservatives and libertarians who had watched with trepidation such things as the creation of the muscular Consumer Financial Protection Bureau in 2011, and President Barack Obama’s attempts to circumvent a deadlocked Congress with agency action on climate change and immigration.

Hamburger created the NCLA in the mold of the NAACP or ACLU, with the goal of battling the federal bureaucracy — the first legal organization in the nation solely dedicated to that cause. Instead of fighting individual regulations, he wanted his group to concentrate its impact by launching multiple lawsuits targeting the pillars, like Chevron, that support federal regulatory power.

At first, Hamburger said in an interview, his plan struggled to gain traction. But in 2017, he received $1 million from the Charles Koch Foundation, which was the lion’s share of donations he used to launch NCLA.

Hamburger hired former Koch Industries in-house counsel Mark Chenoweth to run the group.

Building the network

Koch money kept flowing to the NCLA. Nonprofit organizationsgenerally do not have to report donors, but The Post was able to track nearly $7.2 million from Koch-funded charities through tax records that list the philanthropic giving, which amounts to about 35 percent of NCLA’s budget.

The Charles Koch Foundation donated $1 million each year between 2017 and 2020, while an arm of Stand Together that awards fellowships kicked in more than $1 million in 2020. A third group, the Charles Koch Institute, ponied up $1.1 million the next year. Another Stand Together offshoot, a trust, followed up with more than $1 million in 2022.

Critics say the funding structure is intended to obscure the Koch role in groups like NCLA. In those early years, Democrats routinely targeted the Kochs and their spending as symbols of wealthy interests having outsize political influence.

Stand Together officials say Koch simply has a massive charitable operation that gives away millions to hundreds of groups each year.

The Koch network also has significant ties to Cause of Action. The public interest law firm was founded in 2011 by Daniel Z. Epstein and Will Hild III, both former employees of Koch-founded groups. A review of employees shows it shares most of its staff — and an Arlington, Virginia, address — with Americans for Prosperity (AFP), Koch’s main political action group.

A Koch-founded group that later became Stand Together has given more than $10.7 million to Cause of Action since 2017, accounting for nearly 60 percent of its budget, tax records show.

leaked video of a 2022 internal town hall that included staffers from Stand Together, Americans for Prosperity and a longtime Cause of Action attorney who later joined AFP shows the groups closely coordinating their anti-regulatory agenda.

In the recording, first reported by the Guardian, Mattox of Stand Together says the Supreme Court was “primed for a real change in the law” on federal regulations. One of the biggest victories they hoped to achieve was the end of Chevron.

“That’s why we are partnering with organizations that can get the right cases to the Supreme Court,” Mattox said. He specifically mentioned NCLA and the Pacific Legal Foundation, which won a major case weakening wetlands regulations before the high court last year.

The recording was originally obtained by Documented, a liberal-leaning watchdog group.

Cause of Action declined to discuss the organization’s ties to Koch. Asked about NCLA, Hamburger said it was a “simplistic narrative” to say the Koch network drove the legal group’s agenda. The organization was set up to be insulated from outside influence, he said; board members are not required to fundraise, and they do not take donations for specific legal cases. “We want to make strategic choices driven by intellectual fruits, not driven by money.”

The legal firepower would be a major factor in the overturning of Chevron, but another change was needed: the Supreme Court. Hamburger said that as recently as a few years ago it would have been unthinkable for the justices to strike down such long-settled legal precedent.

Once again, the Koch network helped bring about a major shift.

Bottom row, from left: Justice Sonia Sotomayor, Justice Clarence Thomas, Chief Justice John G. Roberts Jr., Justice Samuel A. Alito and Justice Elena Kagan. Top row, from left: Justice Amy Coney Barrett, Justice Neil M. Gorsuch, Justice Brett M. Kavanaugh and Justice Ketanji Brown Jackson. (J. Scott Applewhite/AP)

Remaking the court

Donald Trump’s surprise 2016 victory prompted intense speculation about the future of Roe v. Wade, the landmark case that guaranteed a federal right to abortion, as well as how the new president might fill the Supreme Court vacancy created by the death of Antonin Scalia months earlier.

Far less noticed was another priority for Trump officials. Donald McGahn, the White House counsel, told a Federalist Society gathering in 2017 that regulatory reform and judicial selection were “the two greatest legal issues that this administration will address.”

“The greatest threat to the rule of law in our modern society is the ever expanding regulatory state,” McGahn, who did not respond to requests for an interview for this article, said in that speech. “The most effective bulwark against that threat is a strong judiciary.”

McGahn handed out Hamburger’s writings to members of his staff in the White House counsel’s office, which helped pick Trump’s justices, NCLA officials said. Potential nominees were also vetted by Leonard Leo, co-chair of the Federalist Society, which gets significant fundingfrom the Koch network.

Koch had famously declined to support Trump in 2016, and the future president had railed against the Koch brothers in campaign appearances as enemies of his populist agenda. But Koch network alumni took key roles in the new administration, and their philosophy permeated the White House.

“Koch played a very nimble game with Trump,” Leonard said. “I called it block and tackle. They tried to block the stuff they didn’t like or not participate. … But for the stuff the Kochs liked about MAGA, they did everything they could to support the agenda.”

McGahn had been a lead attorney for the Koch-funded Freedom Partners Chamber of Commerce. Marc Short was president of the same organization before backing, as Trump’s legislative director, the nomination of Justice Neil M. Gorsuch to the court. Short later became chief of staff to Vice President Mike Pence.

As a congressman, Pence recruited legislators to sign a pledge against a fossil fuel tax, a campaign spearheaded by Americans for Prosperity. David Koch was one of the largest single donors to Pence’s various political races, and Pence has appeared at Koch events.

Deregulatory sentiment, Short told The Post, “was a consensus across the board” in the Trump administration.

Gorsuch fit the template McGahn laid out in his Federalist Society speech; he was deeply skeptical of government regulation and had written an opinion arguing against Chevron. Americans for Prosperity launched door knocks, targeted ads and town hall events aimed at pressuring senators to approve his nomination — the group’s first-ever campaign for a Supreme Court nominee. The organization went to work again in 2018, when Trump nominated Brett M. Kavanaugh, another Chevron critic. It did the same two years later for Amy Coney Barrett,Trump’s final nominee.

The high court now had a conservative supermajority. But the dean of that bloc, Clarence Thomas, had written a 2005 opinion upholding the legal precedent set by Chevron, writing that Chevron’s premise “is for agencies, not courts, to fill statutory gaps.”

In early 2020, however, Thomas created a buzz in legal circles when he repudiated that position. In a dissent to the court’s decision to take a case, he criticized Chevron deference as leaving agencies “free to invent new (purported) interpretations of statutes.” Thomas never publicly explained his change of heart, but it was a flip made by many conservatives, who had seen Chevron in earlier years as a check on liberal judges.

Three years after Thomas’s dissent, Propublica revealed previously undisclosed ties between the justice and the Koch network, reporting that Thomas spoke at a winter summit for Koch donors in 2018 and regularly interacted with the Kochs at the annual all-male retreat in California known as Bohemian Grove, which Thomas has attended for about 25 years.

Democrats and court ethics groups called for Thomas’s recusal from the Chevron case, which by then had been accepted on the docket. Thomas, who did not respond to a request for comment for this story, chose not to step aside.

The court was poised to usher in a new era of diminished regulatory power.


Skipper Patrick Quinn works aboard the Retriever while docked at a Norpel facility with a boat full of herring in New Bedford, Massachusetts, on Jan. 3, 2024. (Joe Lamberti/For The Washington Post)

The fight begins

Cause of Action video laying out its lawsuit frames the case as a band of small-time fisherman fighting an unjust agency that wanted to chargethem more than $700 a day for monitors that would guard against overfishing and enforce other rules.

The government had paid for the monitors previously but was shifting the cost to the fisherman because of budget issues.

“Nobody in a family business wants to be the last one to do it,” intones Stefan Axelsson, a third-generation New Jersey fisherman with a bushy beard and a ship’s helm tattoo. “Everyone wants to pass it on. My fear is I may not be able to.”

Meghan Lapp, a fisherman whose company was a plaintiff in Relentless vs. Department of Commerce, the case brought by NCLA, said the fees were onerous and an example of government overreach in an industry that was scraping by. She feared monitors could be paid more a day than fishermen.

But as angry as the fishermen were, Lapp said, they did not have the resources to mount a major legal fight.

“Regular citizens don’t have the pockets to do something like go to the Supreme Court,” Lapp said. “Many corporations would, but not fishermen.”

That would take millions of dollars and the painstaking work of Koch-associated legal groups. Both NCLA and Cause of Action represented the fishermen pro bono in the lawsuits, which were eventually consolidated into one case.

Long before the lawsuits, Ryan Mulvey, an attorney with Cause of Action, spent months tracking the New England Fishery Management Council, which imposed the monitoring fees. He followed meetings online and shuttled up the eastern seaboard from D.C. to New England to attend in person.

Mulvey told The Post he took interest in the obscure world of fishery regulation after filing a brief in a different case before the Supreme Court in 2015. A commercial fisherman was fighting his conviction for disposing of undersize grouper under a white-collar crime law passed after the Enron scandal. The justices tossed the guilty verdict. Cause of Action’s work in that case led to another one, which would serve as a dry run for the herring-related lawsuits that torpedoed Chevron.

In 2015, Cause of Action sued the New England fisheries council for imposing at-sea monitoring fees on a sector of the industry that fishes for bottom-dwelling fish. But a judge dismissed the lawsuit, ruling a 30-day window to challenge the regulations had long since passed.

It was a stinging defeat, Mulvey said, since he thought they had a strong case on the merits.

He watched the council closely. When the board adopted fees for herring fishermen at the end of 2018, Mulvey and other attorneys reached out to the fishermen they had met on previous trips north, seeking a new set of plaintiffs. NCLA lawyers readied their lawsuit.

A Norpel worker inspects incoming herring from the Retriever in New Bedford, Massachusetts, on Jan. 3, 2024. (Joe Lamberti for The Washington Post)

“There’s not a lot of herring fisherman,” said John J. Vecchione, the former Cause of Action president later hired by NCLA. “They are a known quantity. They have to register their boats. They have to get herring licenses. Those are public. You call them up and say, ‘You know this is coming in?’”

When the fees became official in 2o2o, Cause of Action and NCLA both filed suit within the 30-day window, arguing that federal fisheries law did not include the power to charge fishermen in this way.

Their initial target was relatively modest — knocking down the fees. But as the cases wound through the federal courts, judges repeatedly sided with the federal agency, ruling that the precedent set by Chevron required them to defer to regulators’ interpretation that the fees were legal.

One ruling in the Cause of Action case, Loper Bright Enterprises v. Raimondo, drew a vigorous dissent from Judge Justin Walker, a conservative Trump appointee on the powerful D.C. Circuit of Appeals. He made a case that Chevron should be limited.

Cause of Action attorneys took notice, citing Walker’s opinion to add a momentous question to their November 2022 appeal to the Supreme Court: Should Chevron, a 40-year-old cornerstone of administrative law, be overturned?

NCLA quickly did the same with its lawsuit.

Months later, the Supreme Court agreed to rule on that very question.

Chief Justice John G. Roberts Jr. receives the Henry J. Friendly Medal at the American Law Institute’s 2023 annual dinner on May 23, 2023. (Sarah L. Voisin/The Washington Post)

The demise of Chevron

The decision at the end of June went even further than some in the conservative legal groups had hoped.

Chief Justice John G. Roberts Jr. authored an opinion calling Chevron a “judicial invention” that required judges to disregard their duty to interpret the meaning of statutes. Judges would no longer give deference to agencies on ambiguous regulations, his majority ruled.

“I think we were excited and surprised we got pretty much a win on all counts,” said Mulvey, the Cause of Action attorney.

In a dissent read from the bench, liberal justice Elena Kagan accused the majority of setting itself up as “the country’s administrative czar.” She said agencies are better suited than judges to implement complicated, technical regulations because of their expertise.

The long-term effects of the ruling are still unfolding, but there are indications that the balance of power has already changed — and not in the government’s favor.

The ruling was cited at least 26 times by court of appeals judges in July and August, according to a Bloomberg Law tally. Those courts struck down regulations in four cases, halted rules in 15 others and denied the government’s request for a temporary pause in three instances.

Only in four of the 26 cases did the government prevail.

With a new term underway, legal experts say they expect the court’s majority to continue to limit the power of federal agencies. Already on the docket is a challenge to the Biden administration’s regulation of ghost guns and e-cigarettes.

“Overturning Roe is a lightning rod that gets more press attention, but I would say overturning Chevron was a huge legal victory for limited-government conservatives,” Short said. “People will look back on it as one of the most significant legal decisions in the generation.”

The aftermath

The week before the ruling, the nonprofit State Policy Network (SPN) convened the conference call with conservative and libertarian activists that was recorded by a party and shared with The Post.

SPN is an important node in the world of right-wing advocacy, according to Nick Surgey, the executive director of Documented, which monitors the group. “They play a crucial yet hidden role in synchronizing state think tanks with the Koch network’s objectives and mobilizing them to take coordinated actions,” Surgey said.

The June 21 call was led by Tony Woodlief, an executive vice president at SPN who previously worked at several Koch-backed organizations. Woodlief told those on the call that the conversation was meant to focus on a public relations strategy to bolster legal efforts that would follow Chevron’s demise.

The 51-minute recording did not detail which regulations were on what Woodlief described as a “hit list.” Instead, he talked about a road map of sorts in “friend of the court” briefs filed to the Supreme Court by liberals and others seeking to preserve Chevron.

Taken together, the briefs paint a picture of what could be targeted in a post-Chevron world.

Small-business groups said government loan programs would be badly disrupted, and civil rights lawyers said anti-discrimination protections in housing and employment would be undermined. A coalition of Democratic-led states warned that Medicaid, one of the biggest and most complex programs across government, would be thrown into disarray.



Skipper Patrick Quinn works aboard the Retriever while docked at a Norpel facility with a boat full of herring in New Bedford, Massachusetts, on Jan. 3, 2024. (Joe Lamberti/For The Washington Post)

The fight begins

Cause of Action video laying out its lawsuit frames the case as a band of small-time fisherman fighting an unjust agency that wanted to chargethem more than $700 a day for monitors that would guard against overfishing and enforce other rules.

The government had paid for the monitors previously but was shifting the cost to the fisherman because of budget issues.

“Nobody in a family business wants to be the last one to do it,” intones Stefan Axelsson, a third-generation New Jersey fisherman with a bushy beard and a ship’s helm tattoo. “Everyone wants to pass it on. My fear is I may not be able to.”

Meghan Lapp, a fisherman whose company was a plaintiff in Relentless vs. Department of Commerce, the case brought by NCLA, said the fees were onerous and an example of government overreach in an industry that was scraping by. She feared monitors could be paid more a day than fishermen.

But as angry as the fishermen were, Lapp said, they did not have the resources to mount a major legal fight.

“Regular citizens don’t have the pockets to do something like go to the Supreme Court,” Lapp said. “Many corporations would, but not fishermen.”

That would take millions of dollars and the painstaking work of Koch-associated legal groups. Both NCLA and Cause of Action represented the fishermen pro bono in the lawsuits, which were eventually consolidated into one case.

Long before the lawsuits, Ryan Mulvey, an attorney with Cause of Action, spent months tracking the New England Fishery Management Council, which imposed the monitoring fees. He followed meetings online and shuttled up the eastern seaboard from D.C. to New England to attend in person.

Mulvey told The Post he took interest in the obscure world of fishery regulation after filing a brief in a different case before the Supreme Court in 2015. A commercial fisherman was fighting his conviction for disposing of undersize grouper under a white-collar crime law passed after the Enron scandal. The justices tossed the guilty verdict. Cause of Action’s work in that case led to another one, which would serve as a dry run for the herring-related lawsuits that torpedoed Chevron.

In 2015, Cause of Action sued the New England fisheries council for imposing at-sea monitoring fees on a sector of the industry that fishes for bottom-dwelling fish. But a judge dismissed the lawsuit, ruling a 30-day window to challenge the regulations had long since passed.

It was a stinging defeat, Mulvey said, since he thought they had a strong case on the merits.

He watched the council closely. When the board adopted fees for herring fishermen at the end of 2018, Mulvey and other attorneys reached out to the fishermen they had met on previous trips north, seeking a new set of plaintiffs. NCLA lawyers readied their lawsuit.

A Norpel worker inspects incoming herring from the Retriever in New Bedford, Massachusetts, on Jan. 3, 2024. (Joe Lamberti for The Washington Post)

“There’s not a lot of herring fisherman,” said John J. Vecchione, the former Cause of Action president later hired by NCLA. “They are a known quantity. They have to register their boats. They have to get herring licenses. Those are public. You call them up and say, ‘You know this is coming in?’”

When the fees became official in 2o2o, Cause of Action and NCLA both filed suit within the 30-day window, arguing that federal fisheries law did not include the power to charge fishermen in this way.

Their initial target was relatively modest — knocking down the fees. But as the cases wound through the federal courts, judges repeatedly sided with the federal agency, ruling that the precedent set by Chevron required them to defer to regulators’ interpretation that the fees were legal.

One ruling in the Cause of Action case, Loper Bright Enterprises v. Raimondo, drew a vigorous dissent from Judge Justin Walker, a conservative Trump appointee on the powerful D.C. Circuit of Appeals. He made a case that Chevron should be limited.

Cause of Action attorneys took notice, citing Walker’s opinion to add a momentous question to their November 2022 appeal to the Supreme Court: Should Chevron, a 40-year-old cornerstone of administrative law, be overturned?

NCLA quickly did the same with its lawsuit.

Months later, the Supreme Court agreed to rule on that very question.

Chief Justice John G. Roberts Jr. receives the Henry J. Friendly Medal at the American Law Institute’s 2023 annual dinner on May 23, 2023. (Sarah L. Voisin/The Washington Post)

The demise of Chevron

The decision at the end of June went even further than some in the conservative legal groups had hoped.

Chief Justice John G. Roberts Jr. authored an opinion calling Chevron a “judicial invention” that required judges to disregard their duty to interpret the meaning of statutes. Judges would no longer give deference to agencies on ambiguous regulations, his majority ruled.

“I think we were excited and surprised we got pretty much a win on all counts,” said Mulvey, the Cause of Action attorney.

In a dissent read from the bench, liberal justice Elena Kagan accused the majority of setting itself up as “the country’s administrative czar.” She said agencies are better suited than judges to implement complicated, technical regulations because of their expertise.

The long-term effects of the ruling are still unfolding, but there are indications that the balance of power has already changed — and not in the government’s favor.

The ruling was cited at least 26 times by court of appeals judges in July and August, according to a Bloomberg Law tally. Those courts struck down regulations in four cases, halted rules in 15 others and denied the government’s request for a temporary pause in three instances.

Only in four of the 26 cases did the government prevail.

With a new term underway, legal experts say they expect the court’s majority to continue to limit the power of federal agencies. Already on the docket is a challenge to the Biden administration’s regulation of ghost guns and e-cigarettes.

“Overturning Roe is a lightning rod that gets more press attention, but I would say overturning Chevron was a huge legal victory for limited-government conservatives,” Short said. “People will look back on it as one of the most significant legal decisions in the generation.”

The aftermath

The week before the ruling, the nonprofit State Policy Network (SPN) convened the conference call with conservative and libertarian activists that was recorded by a party and shared with The Post.

SPN is an important node in the world of right-wing advocacy, according to Nick Surgey, the executive director of Documented, which monitors the group. “They play a crucial yet hidden role in synchronizing state think tanks with the Koch network’s objectives and mobilizing them to take coordinated actions,” Surgey said.

The June 21 call was led by Tony Woodlief, an executive vice president at SPN who previously worked at several Koch-backed organizations. Woodlief told those on the call that the conversation was meant to focus on a public relations strategy to bolster legal efforts that would follow Chevron’s demise.

The 51-minute recording did not detail which regulations were on what Woodlief described as a “hit list.” Instead, he talked about a road map of sorts in “friend of the court” briefs filed to the Supreme Court by liberals and others seeking to preserve Chevron.

Taken together, the briefs paint a picture of what could be targeted in a post-Chevron world.

Small-business groups said government loan programs would be badly disrupted, and civil rights lawyers said anti-discrimination protections in housing and employment would be undermined. A coalition of Democratic-led states warned that Medicaid, one of the biggest and most complex programs across government, would be thrown into disarray.

During the call, Woodlief said the next phase in the “pincer movement” against federal regulation would be an attempt to restrict Congress from delegating powers to federal agencies in the first place. He attributed the plan to the same “big players” behind the attack on Chevron but did not name them.

“There’s a lot of stuff teed up to restrain the ability of Congress to just write a blank check to government agencies,” Woodlief said, citing a conservative argument that parts of the federal bureaucracy are operating unlawfully because Congress is barred from delegating its lawmaking powers to executive agencies.

The Supreme Court has not used the non-delegation doctrine to strike down a ruling since 1935. But the justices announced last month that they would hear a pair of cases on that issue.

In emailed responses to questions from The Post about the call, Woodlief described his comments about the post-Chevron plans of lawyers involved in the case as “careless remarks” that he regretted. He said he did not speak for the lawyers involved in the Chevron case or other lawsuits and had no special access to their strategy discussions.

Americans for Prosperity told The Post it was unaware of the conference call. A spokesperson for Koch’s network said, “We fund a number of diverse organizations across the nation.”

Last month, at a Federalist Society panel discussion in Washington, D.C., Hamburger opened a bottle of champagne to celebrate the demise of the “administrative state.” The crowd cheered as the cork popped.

“This is just the beginning,” Hamburger said.

Justin Jouvenal covers the Supreme Court. He previously covered policing and the courts locally and nationally. He joined The Post in 2009. @jjouvenal
Jon Swaine joined The Washington Post's investigative team in 2019. He previously worked as a senior reporter for The Guardian, and as a reporter and foreign correspondent for The Daily Telegraph.@jonswaine
Ann Marimow covers the Supreme Court for The Washington Post. She joined The Post in 2005, and has spent a decade writing about legal affairs and the federal judiciary. She previously covered state government and politics in California, New Hampshire and Maryland.@amarimow


1 comment:

Jim said...

Hopefully they turn the Veterans Healthcare Administration into an insurance program and concentrate the responsibility and accountability for any denial of care on a handful of people... because as it sits you got a gauntlet of denial of care and nobody can do a damn thing about it. But what they will do is pay 400,000 people to work there. I say put that money towards veterans healthcare.