It is difficult to convey how it felt on Friday, June 28, 2024, when the U.S. Supreme Court announced its decisions for that day. There were a few, and they all hit hard. The decision that landed with the largest thump, to me, was Loper Bright Enterprises v. Raimondo, or simply Loper. Even before the Supreme Court’s decision was released, Loper was no ordinary case and whatever the court decided would bring major consequences. The 6-3 majority opinion struck down a judicial doctrine known as the “Chevron deference” in a ruling that blocked the U.S. Commerce Department from enacting specific regulations of the fishing industry.1 While initially thinking about the decision through a historical lens, my thoughts soon turned to mopey contemplation. In the off-handed way that these things are done, I tapped out a quick microblog post on my phone and sent it into the ether where my writing typically goes to die. This time though, it went viral, reaching at least 1.4 million X (formerly Twitter) users and garnering tens of thousands of likes. This means that a gloomy musing will likely be the most popular piece of writing I ever produce. Depressing thought aside, but how can we move beyond the microblog to a deeper understanding of this historical moment? Unsurprisingly for a historian, the answer is historical research and narrative-based analysis.
If American citizens get nice things, like a federal government actively seeking to curb overfishing, it comes down to the structure of said federal government and how power works between the three branches. By the 1930s, the Supreme Court had spent decades rolling back Progressive Era gains. The court used its powers to block popular policies, including federal income taxes (until the 16th Amendment), workers’ rights, and welfare programs for mothers and children. It even overturned the first New Deal in two rulings, with one hinging on the idea that the Congress lacked the power to delegate the responsibilities it had to the executive branch. But by the end of the 1930s, the court swung toward President Franklin Roosevelt’s new and popular conception of liberalism: that the federal government had the power to improve American’s lives. The court approved of Congress delegating authority. Now it had to decide how that would work in practice.
In 1944, the Supreme Court heard two cases relating to 1938’s Fair Labor Standards Act. Both cases involved firefighting crews being required to pull night shifts by leading meatpacking companies.2 In one case, firefighters who were employed by Armour and Co. had to spend nights at a soap factory (which was soon to invent antibiotic Dial Soap) after their day shifts.3 They sued the company claiming that the company owed them overtime since this was additional duty, even if they were done with their required tasks and were just playing cards. The other case, Skidmore v. Swift & Co. (or Skidmore), regarded a similar claim against Swift and Co.4 In both, the Supreme Court sided with the workers’ claims and, in Skidmore, defended administrative decision making when Congress had failed to enumerate every situation that might arise.5 Surprising no one, the Fair Labor Standards Act had not actually spelled out how meatpacking plants should manage their firefighting crews.
The administration of the 1938 law was still not settled with the meatpacking firefighter cases. In summer 1946, President Harry S. Truman and his fellow liberals struggled to save the New Deal from a rightward swing in U.S. politics. Their solution was a bill called the Administrative Procedure Act of 1946. The law would formalize how the executive and its agencies would enact laws.6 This was especially needed since a large peacetime federal government had never existed in a permanent form. With the Great Depression over and World War II having ended, the act established a framework for the government to continue to work. Skidmore then is the standard that the Administrative Procedure Act encapsulated. Congress could pass broad guidelines and specific targets and the executive branch would figure out how to get there. For the firefighters at meatpacking plants in 1944, it meant that they did get the overtime guaranteed in what was the final New Deal law. They were covered by the Congressional intent that workers get paid overtime, even if their employer did not want to pay it.
But, if Skidmore was in 1944, then what is the deal with 1984’s Chevron? Years of administrative case law left some confusion and a fierce battle between liberal concepts of executive agency independence versus a growing conservative idea that executive agencies were extensions of a unified presidency who was the executive branch.7 First there was a company recently reincorporated in 1984 as Chevron from its previous existence as Standard Oil of California. Second, enter retired actor, former union president, HUAC friendly witness, onetime GE spokesman, ex-California governor, and movement conservative Ronald Reagan and his “Reagan revolution.”
After Reagan’s 1981 inauguration, his administration moved to restrict the ability of executive agencies like the Environmental Protection Agency (EPA) to regulate businesses. By Reagan’s first term, the Supreme Court had turned decidedly conservative in its rulings, setting up his administration for several big wins. He got one in summer 1984 when the Supreme Court ruled 6-0 that the EPA could, in fact, reduce its regulation of air pollution. The agency could do this despite the Clean Air Act of 1963, as amended, requiring the EPA to regulate all new forms of pollution, particularly regarding smokestacks.8 To arrive at this conclusion, the court ruled that agencies had to follow a two-step decision-making process.9 Furthermore, the ruling claimed outright that the agency was the expert. Courts would defer to agencies in the future. When Reagan’s EPA claimed that Chevron could expand an existing plant and therefore spew more toxins into the atmosphere, they could do this without having to meet with federal regulators and courts had to assume that the agency knew best. The Democratic Party-led Congress lost out. The lower court order that had forced the EPA to regulate more aggressively at Congress’s behest was overturned. Hence, the Chevron deference.
What began life as a conservative legal tool to expand the polluting potential of America’s energy industry soon became the most important ruling in administrative law, one that anchored an agency’s regulatory power to the Constitution.10 Under Chevron, courts had to show deference in their rulings to executive agency experts. Even the ones who doubted the very agency they worked for. With the Supreme Court questioning the ability of the Congress to delegate statutory authority to the executive branch, this put even more pressure on the deference doctrine. Now that Chevron is overturned, there remains the less rigorous Skidmore.11
Which brings us back to that Friday when a week of decisions drove me to doomposting. In addition to musing about the rollback of executive authority, I made sure to highlight the challenges facing the country, problems that demand vigorous public policies to combat. Per- and polyfluoroalkyl substances (or PFAS) are everywhere. These are often called “forever chemicals” that are used in industrial manufacturing, fire-proofing, and non-stick kitchenware.12 PFAS cause a myriad of problems, including cancer. Since U.S. cities and states lack the singular power that the federal government possesses, it falls to a federal government to regulate but one with its regulatory powers severely curtailed. Same with pesticides like glyphosate (the active ingredient in “Roundup”), whose liability potential Beyer is actively seeking to avoid.13 Of course there is also climate change threatening all life on earth. Only an active federal government stands a chance of forcing petroleum companies like Chevron to reduce their greenhouse gas output.
So what do we make of all this history and our current situation? For one, clearly, being a bummer on social media is popular. Very popular, even. Second, and more importantly, mourning the state of things is not how we solve problems. We must do like the National Resources Defense Council did in 1984 when they initiated the Chevron case or those workers did in 1944 and sue for our rights. There also is research and the tools of the historian. We conduct research like for this piece you are reading, contextualize our findings, and explain why it matters. Findings like these can help us better understand our present situation (notably, said research ought not only include recent U.S. history either). At every step, the elected branches of government formulated policies that determined how the government could act. At every step, the court either approved the government actions or blocked them. At every step, it is important to fight for our rights, even if it is the right to play poker and earn overtime pay or to force fishermen to follow federal regulations designed to prevent overfishing. We only get one chance.
- Matthew Daley, “What It Means for the Supreme Court to Throw out Chevron Decision, Undercutting Federal Regulators,” AP, June 28, 2024.
- My current book project explores the history of meatpacking and meat consumption through the lens of politics and policies. Meatpacking sits at the crossroads of agricultural and industrial production, and, therefore, it is regulated at times as either any other factory or as any farm might.
- “Idle Fire Duty Compensable, Says High Court,” Chicago Tribune, December 5, 1944.
- Edward H. Higgs, “Waiting Counts as Overtime, Court Holds,” Washington Post, December 5, 1944.
- Jamie A. Yavelberg, “The Revival of Skidmore v. Swift: Judicial Deference to Agency Interpretations after EEOC v. Aramco,” Duke Law Journal 42, no. 1 (October 1992): 171.
- Ibid., 167–68.
- On this general approach and its relationship to movement conservatism, see Meg Jacobs and Julian Zelizer, “Introduction,” in Meg Jacobs and Julian Zelizer, eds., Conservatives in Power: The Reagan Years, 1981–1989 (Boston: Bedford/St. Martin, 2011), 38.
- Linda Greenhouse, “Court Upholds Reagan on Air Standard,” New York Times, June 26, 1984.
- Peter M. Shane and Christopher J. Walker, “Foreword: Chevron at 30: Looking Back and Looking Forward,” Fordham Law Review 83, no. 2 (2014): 477.
- Ibid., 475–76.
- On what the return to Skidmore might mean, see Phillip Dane Warren, “The Impact of Weakening Chevron Deference on Environmental Deregulation,” Columbia Law Review 118, no, 2 (March 2018): 77–78.
- Sharon Lerner, “How 3M Executives Convinced a Scientist the Forever Chemicals She Found in Human Blood Were Safe,” ProPublica, May 20, 2024.
- On glyphosate, see Bartow J. Elmore, Seed Money: Monsanto’s Past and Our Food Future (New York: Norton, 2022). On the recent tribulations of Bayer and liability, see Ronald V. Miller, Jr., “Monsanto Roundup Lawsuit Update,” Lawsuit Information Center, June 28, 2024.
