September 22, 2023

Whitehouse, Hirono, Feinstein, Warren File Amicus Brief Calling Out Koch-Backed Effort to Concentrate Power in the Hands of Right-Wing Justices

Loper plaintiffs and fossil-fuel-funded amici seek to tear down administrative state. Brief urges the Supreme Court to affirm D.C. Circuit and reject ‘decades-long effort by pro-corporate interests to eviscerate the federal government’s regulatory apparatus, to the detriment of the American people.’ New ProPublica report details Koch effort to bring Loper case while seeming to court Justice Thomas.

Washington, DC – Yesterday, Senators Sheldon Whitehouse (D-RI), Mazie Hirono (D-HI), Dianne Feinstein (D-CA) and Elizabeth Warren (D-MA) filed an amicus curiae —or “friend of the court”—brief in Loper Bright Enterprises v. Raimondo, the Supreme Court case that asks the Court to overrule decades of settled precedent to curtail federal administrative agency authority at the behest of big corporate special interests.  Counsel of record for the senators is University of California, Berkeley School of Law Dean Erwin Chemerinsky.

In their brief, the senators defend the Court’s long-established Chevron deference framework at stake in Loper as an important policymaking tool for the executive and legislative branches of government.  Overturning Chevron is likely to tilt the balance of power toward the unaccountable judicial branch at the expense of the democratically-chosen legislative and executive branches. 

“Eliminating Chevron deference would not just conflict with Congress’s well-established policymaking desires; it would erode the separation of powers by shifting policymaking power from Congress and the executive to the unaccountable judiciary,” wrote the senators.  “Even if it were true that there is not adequate accountability in administrative agencies, the answer to that is hardly to remove that authority to even-less-accountable courts, or to a Congress that would be so practically overwhelmed as to render accountability meaningless.”

In Chevron v. Natural Resources Defense Council, the Court established a framework that requires federal courts to defer to a federal executive agency’s reasonable interpretation of broad policy statutes that are passed by Congress.  This long-running framework allows an agency’s scientists or experts, well-versed in the technical aspects of technical regulatory decisions, to implement policy guided by Congressional intent.  The senators’ brief finds that the petitioners in Loper who ask the Court to overrule the Chevron framework are participating in an industry-driven campaign to dismantle the administrative state and boost corporate profits. 

“The American regulatory system is a massive value to the American people.  However, certain regulated industries resent the constraints these regulations place upon them,” wrote the senators.  “These industries have spent billions to undo these constraints, through massive public-relations operations, the purchasing of political capital through campaign-finance spending, and cases such as this one—seeded through years of industry spending and buoyed by flotillas of industry amici.”

An array of fossil-fuel-funded amici have filed in Loper, including The Buckeye Institute, Cato Institute, Competitive Enterprise Institute, Landmark Legal Foundation, Mountain States Legal Foundation, National Right to Work Legal Defense Foundation, New Civil Liberties Alliance, and Pacific Legal Foundation.  Each of these filers received hundreds of thousands, and in some cases millions, of dollars of donations from far-right family foundations, right-wing dark money groups, and fossil fuel corporations who have also funded climate denial operations.  The brief cautions the Court to “be wary of these groups’ industry-driven narratives.”

“The assault in this case on the regulatory system is not an isolated effort.  For years, regulated interests have funded a full-scale campaign to delegitimize and dismantle federal regulations,” wrote the senators.  “The Court should proceed cautiously before contributing to their sought-for degradation of our American regulatory system.”

One of the biggest funders of this industry-funded operation is the Koch political network.  Earlier today, ProPublica reported that Justice Clarence Thomas has “served as a fundraising draw” at Koch events, including at a “top-tier” dinner for Koch donors.  ProPublica reported that these appearances were “part of a yearslong, personal relationship with the Koch brothers that has remained almost entirely out of public view.”  The senators’ brief documents multiple amici in Loper that have “received substantial funding from the Koch family foundations.”

The senators also point out the excessive disruption of the law on agency power over the last two years has helped polluters and other regulated industries avoid accountability for harms they inflict to public health and safety.  The Court’s decision in West Virginia v. EPA established the “major questions” doctrine, which gives federal judges unprecedented leeway to overturn agency actions that the judge finds to have “vast ‘economic and political significance.’”  Whitehouse, Warren, and Chemerinsky filed an amicus brief in that case alongside Senators Bernie Sanders (I-VT) and Richard Blumenthal (D-CT) that pointed out a similar industry-organized campaign in that case. 

The senators believe that if the Court rules again in favor of the big special interests aiming to overrule Chevron, the Court would further open the floodgates to corporate and judicial supremacy in our political system.

“Reliance interests, stare decisis, and judicial moderation all counsel against further eroding bedrock principles of administrative law and the American regulatory system,” concluded the senators.  “The American regulatory system has served well to protect the public health, safety, and welfare under the scrutiny of all three branches of government. Few other than polluters would benefit from further damage.”

Erwin Chemerinsky is counsel of record for the senators on the brief.  He is the Dean and the Jesse H. Choper Distinguished Professor at Berkeley Law, and the author of sixteen books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. 

Full text of the brief is available here.


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