Fishy Deep State

Summary

Episode Overview

Episode Title: Fishy Deep State
Podcast: What Trump Can Teach Us About Con Law
Host: Roman Mars
Guest/Expert: Professor Elizabeth Joh
Release Date: August 27, 2024

In this episode, Roman Mars and Professor Elizabeth Joh explore the concept of the "deep state" in the American political lexicon, its evolution from a conspiratorial buzzword to a legal and political catch-all, and how this narrative ties directly into very real and impactful Supreme Court decisions about federal government authority—notably, the recent overturning of the Chevron doctrine in Loper Bright v. Raimondo. The episode also examines Trump's proposed "Schedule F" and its implications for the future of the federal bureaucracy.

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Key Discussion Points & Insights

1. The "Deep State": From Conspiracy to Legal Doctrine

[03:34–04:49]

• Initial Meaning:
  • In political science, "deep state" originally referred to undemocratic, clandestine influence—typically military/security officials in authoritarian countries (e.g., Turkey, Egypt).
  • In the U.S., "no serious person thinks" there’s a secret American government in this sense—yet, the term became mainstream through Trump's rhetoric.
    • Elizabeth Joh: "But Trump began to tweet and talk about the deep state when he became president..." [04:46]
• Political Rebranding:
  • Trump expanded the term to attack any investigations into him, generalizing "deep state" to refer broadly to government bureaucracy, especially federal agencies (the administrative state).
  • This framing—vague and sinister—became a powerful tool for conservative activists and corporate interests to rally against regulation.

2. What is the Administrative State?

[04:51–08:07]

• Definition & Function:
  • The administrative state refers to federal agencies (e.g., EPA, FDA, FAA) that regulate safety, health, the environment, and distribute benefits (Social Security, Medicare).
  • These agencies have regulatory power, employ career experts, and maintain continuity across administrations.
• Political Opposition:
  • Business interests and conservatives criticize agency power as overreach, spending "millions fighting new regulations in court."
  • Conservative legal strategy: Appoint judges critical of agency power.

3. Chevron Deference: The Legal Foundation Under Attack

[08:07–12:41]

• Chevron v. NRDC (1984):
  • Established that if Congress's intent in a law is ambiguous, courts should defer to the reasonable interpretation of the relevant agency ("Chevron deference").
  • Initially seen as a win for conservatives (Reagan EPA deregulating), but as agencies regulated more, it became a target for the right, who saw it as enabling unchecked bureaucracy.
    • Roman Mars: "…the Chevron case at the time…is actually a win for conservatives." [11:04]
    • Elizabeth Joh: "But politics changed...over time, because of the Chevron case, corporations found that it was really hard to challenge federal regulations in court." [11:21]

4. "Deconstructing The Administrative State": Politics and Rhetoric

[12:41–13:31]

• Steve Bannon’s agenda: Called for "the deconstruction of the administrative state," a theme picked up by Trump under the more palatable banner of fighting the "deep state."
• Bureaucratic Expertise as Political Fodder:
  • Example: Conservatives attacking Dr. Anthony Fauci as a "deep state" official during COVID-19.
    • Elizabeth Joh: "They called Fauci an agent of the deep state. Remember?" [13:30]
• Trump's Judicial Legacy:
  • 226 federal judges and 3 Supreme Court justices appointed, shifting the judiciary’s attitude toward Chevron.

5. The Case of the Silvery Fish: Loper Bright v. Raimondo

[13:31–18:08]

• Background:
  • 1976 Magnuson-Stevens Act empowered the National Marine Fisheries Service to regulate fisheries.
  • In 2020, NMFS required Atlantic herring fishermen to not only have federal monitors aboard but also to pay for them.
  • Lawsuit filed—not grassroots, but backed by conservative activist lawyers and Koch funding.
• Legal Issue:
  • Under Chevron, if Congress’s statute is ambiguous, the agency wins if its interpretation is reasonable.
  • The Supreme Court, in Loper Bright (June 28, 2024), ruled for the fisheries and "overruled Chevron."
    • Elizabeth Joh: "Chief Justice Roberts concluded for the majority, Chevron is overruled." [16:52]

6. End of Chevron Deference: What Changes?

[18:26–21:40]

• Practical Impact:
  • Now, federal regulatory ambiguity will be resolved by courts—judges, not experts.
  • Opens the door to increased litigation and regulatory instability.
    • Roman Mars: "So what does it mean to have the end of Chevron deference?" [18:26]
    • Elizabeth Joh: "…the final say should go to courts, not agency staff, people who might be trained in scientific data analysis…In fact, it should be judges instead of them." [19:22]
• Why it’s significant:
  • Groups supporting the overturning spanned gun rights, home builders, food industry, tobacco—industries seeking less regulation.
  • Justice Kagan’s dissent: "Expertise is good…we don't necessarily have as courts the ability to figure out how to make these determinations." [19:56]
  • DOJ lawyer Elizabeth Preligar: Overturning Chevron would be a "convulsive shock to the legal system." [20:59]
  • Trump lawyer Jay Sekulow’s celebratory response, "massive blow to the deep state’s unchecked power." [21:22]

7. Schedule F: Trump’s Plan to Politicize the Bureaucracy

[21:40–25:59]

• What is Schedule F?
  • Trump-prompted executive order to reclassify up to 50,000 career civil servants as political appointees (from ~4,000). This would allow a president to fire experienced staff and install loyalists.
    • Elizabeth Joh: "…if all of these people now became political appointees, a new president could come in, fire them for any reason… and put in people who are simply loyal to the new president…" [22:46]
  • Order was rescinded by Biden but Trump vows to bring it back on "day one" if elected.
  • J.D. Vance is an outspoken advocate: "…fire every single mid level bureaucrat, every civil servant in the administrative state." [23:54]
• Historical Parallels:
  • Roman Mars links this to an earlier era of corruption by patronage, explaining how civil service reform aimed to eliminate job rewards for political loyalty.
    • Roman Mars: "The whole part of early 20th-century politics is all about undoing patronage..." [24:42]

8. Dangerous Consequences for Governance

[25:59–27:09]

• Expertise vs. Ideology:
  • Dismantling career expertise risks regulatory capture, incompetence, or outright corruption in federal agencies.
    • Elizabeth Joh: "…these are things we would like scientists to make decisions about, not just partisan loyalists for sure." [25:54]
• Legal and Business Uncertainty:
  • Businesses may face difficulty planning long-term, as regulations become more easily challenged and less stable.

9. The Supreme Court and Stare Decisis

[27:09–28:16]

• Court’s Changeability:
  • Roman Mars: "…that sense of uncertainty is what the Court, independent of it being more conservative or more liberal—the court really hates that." [27:09]
  • Elizabeth Joh: "And in fact, a big portion of the back and forth between the majority and the dissenters in Loper Bright is about the idea of stare decisis…" [27:44]
  • Kagan’s dissent points out the majority’s reasoning is little more than dislike of the precedent.

10. The Gorsuch Chevron Connection

[31:04–32:05]

• Justice Neil Gorsuch wrote an extensive concurrence against Chevron, reflecting deep skepticism of administrative power.
• Surprising Connection: His mother, Anne Gorsuch, was the Reagan EPA administrator whose deregulatory bent sparked the original Chevron case.
  • Elizabeth Joh: "Reagan's EPA administrator…Anne Gorsuch, his mother." [31:31]
  • Roman Mars: "Oh, my God, that's so weird. That's so weird and random." [31:40]

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Notable Quotes & Memorable Moments

• On What the “Deep State” Really Is:

  • Elizabeth Joh: "No serious person thinks the United States has the same secret government conspiracy, but ... Trump began to tweet and talk about the deep state when he became president." [04:46]

• On the Chevron Precedent:

  • Elizabeth Joh: "If things are unclear, the court should defer or rely on what the agency has done, meaning that the court should leave the agency's interpretation alone, even if the court might disagree." [09:44]

• On Expert Versus Judicial Decision-Making:

  • Elizabeth Joh: "Who decides? The agency or a judge? Well, the Loper Bright case now means that the Supreme Court has decided the final say should go to courts, not agency staff..." [19:22]

• On Schedule F and Politicizing Government:

  • Elizabeth Joh: "For Trump, Schedule F would mean that Trump would take office and fire tens of thousands of people working in federal agencies and replace them with people who are simply politically loyal to him." [23:14]

• On Historical Context:

  • Roman Mars: "All of the 20th century was all trying to sort of get to the point where you had to have some kind of merit based system for getting a job inside of the government. And it's amazing that the big idea is to just undo all that." [24:42]

• On the Loss of Stability and Business Planning:

  • Elizabeth Joh: "But even from a business perspective, you can sort of understand why...it's harder for businesses...you're not sure how long the regulation is going to last." [26:32]

• On Gorsuch’s Personal Connection to Chevron:

  • Elizabeth Joh: "[Anne Gorsuch]…Reagan's EPA administrator, the person who created those new regulations making it easier for polluters to pollute. Anne Gorsuch, his mother." [31:31]

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Timestamps for Important Segments

• Defining the Deep State: [03:34–04:49]
• Administrative State Overview: [04:51–08:07]
• Chevron Deference Background: [08:07–12:41]
• Political Attacks on Bureaucracy: [12:41–13:31]
• Loper Bright Supreme Court Decision: [13:31–18:08]
• Impacts of Overruling Chevron: [18:26–21:40]
• Schedule F & Trump’s 2024 Agenda: [21:40–25:59]
• Dangers of Politicizing Expertise: [25:59–27:09]
• Supreme Court and Precedent: [27:09–28:16]
• Neil Gorsuch’s Personal Connection: [31:04–32:05]

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Tone and Style

The episode combines the informal enthusiasm of Roman Mars—often incredulous and wry—with the accessible, clear, and slightly amused expertise of Professor Joh. Both are skeptical of the wisdom and motivations behind attacks on federal expertise and express concern about the broader implications for American democracy and governance.

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Conclusion

This episode demystifies what the "deep state" really means within American constitutional structure—tying together legal doctrine, political rhetoric, and court decisions with implications for the future of federal regulation, agency expertise, and democratic integrity. Through the lens of a "little silvery fish" and the fate of Chevron deference, Professor Elizabeth Joh shows how political strategy, judicial reasoning, and administrative law intersect with the everyday lives and protections of Americans.

Transcript

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[Legal Expert]

Prices and participation may vary.

[Roman Mars]

So it is Thursday, August 22, at about 3pm what are we going to be talking about today?

[Legal Expert]

All right, well, let's go to the beginning of this year.

[Roman Mars]

Okay.

[Legal Expert]

In the first major rally of his 2024 campaign, former President Trump spoke to his supporters in Waco Te. And he told the crowd, I am your warrior. I am your justice. I am your retribution. But then he also told the crowd that either the deep state destroys America or we destroy the deep state. Now, you probably remember the term witch hunt, right?

[Roman Mars]

Yeah, no, Yeah, I do. Yeah.

[Legal Expert]

Yep. And Trump used it for every kind of political or legal trouble he received during his presidency. So special Counsel Robert Mueller's 2017 investigation. Witch hunt.

[Roman Mars]

Witch hunt, yeah.

[Legal Expert]

FBI raid of his former lawyer, Michael Cohen. Witch hunt. Criminal indictments. Witch hunt. So, like witch hunt, the term deep state also became a favorite phrase of Trump's to attack all of the investigations, all of the legal troubles Trump has faced. According to Trump, all of these are witch hunts conducted by the deep state. Okay, and so here's an example. On May 23, 2018, Trump tweeted about the criminal deep state going after phony collusion with Russia. And on September 15, 2019, Trump tweeted, I am fighting the fake corrupt news, the deep state, and the Democrats. So it's no surprise that in 2024, Trump is still talking about the deep state. And he's got a new running mate, J.D. vance. And Vance, he keeps talking about bringing back something called schedule F from the first Trump administration. And Trump's complaints about the deep state. And Vance's calls for schedule F happen to be related to a dispute about a little silvery fish, the Atlantic herring. They're usually canned as sardines. And that little fish is at the center of a raging, important dispute the Supreme Court decided just a few months ago. What's the fishy connection between Trump, Vance and the Supreme Court? Time to find out.

[Roman Mars]

Let's do it. This is what Roman Mars can learn about con law, an ongoing series of indeterminate length and sporadic release where we look at the connection between the so called deep state and a tiny silvery fish and use it to examine our Constitution like we never have before. Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Joe. And I'm your fellow student and host, Roman Mars.

[McDonald's Advertiser]

For a limited time at McDonald's, get a Big Mac Extra Value meal for $8. That means two all beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun, and medium fries. And a drink. We may need to change that jingle.

[Legal Expert]

Prices and participation may vary.

[Roman Mars]

So what is the deep state?

[Legal Expert]

Well, if you're a serious scholar, it's a serious term.

[Roman Mars]

Oh, really?

[Legal Expert]

It's been used, right?

[Roman Mars]

I thought it was all just movies made up nonsense, but this actually has some kind of grounding in something real.

[Legal Expert]

Yeah, it is a serious term, but it's been used to describe authoritarian governments like Turkey or Egypt. And for those countries, the term deep state refers to military or security officials within the government that secretly control the political system. But no serious person thinks the United States has the same secret government conspiracy, but like you might find in Turkey or Egypt. But Trump began to tweet and talk about the deep state when he became president. Now, at first, he was referring to the scrutiny of his own behavior, like Mueller's investigation of Russian interference into the 2016 election, or when he faced his own criminal investigations that later turned into indictments. But over time, the term deep state has morphed into a more general way to refer to the government, especially the federal administrative state. And that connection happens to be very, very appealing to conservative activists and corporate interests.

[Roman Mars]

So what's the connection there? Why are they interested in this term?

[Legal Expert]

Well, first I think we should talk about what the administrative state is.

[Roman Mars]

Okay, Right.

[Legal Expert]

So the administrative state sounds like a pretty dry topic, but it's another way to describe how important the federal government is to ordinary people. Do you want to work in a place where death and injury isn't the Nor do you want to have kids, to have as little lead in their bloodstream as possible?

[Roman Mars]

Yeah.

[Legal Expert]

Do you want people to receive Social Security or Medicare payments on time? Do you want to avoid being poisoned by your groceries? Did you ever wonder why the Cuyahoga river in Cleveland used to catch on fire regularly, but doesn't anymore? You can thank the administrative state.

[Roman Mars]

Yes.

[Legal Expert]

And so the administrative state is just a way to talk about federal agencies. And of course, most people are familiar with those three letter agencies, agencies like the FDA or the EPA or the sec. And these agencies have a lot of power. They write federal regulations. Many of them can conduct investigations. And some agencies can even go after people who violate these regulations and start legal cases against them. And all of this agency power is by design. When Congress passes a Federal law on a complicated subject like the regulation of prescription drugs, Congress doesn't really have the expertise or the resources to figure out what those rules should be for every single kind of drug. And even if Congress could regulate every prescription drug at one time in one year, imagine having to update that federal law each time a new drug came on the market. So that's an impossible task. Instead, Congress passes some of its powers to federal agencies, and lawyers call this legislative delegation. All that means is that the federal agencies are primarily in charge of regulating things like the food we eat, the drugs we take, and the air we breathe. That's the administrative state. And when you think about these agencies, they employ thousands of people. And many of these people have special expertise and training. So the EPA has scientists. They study things like chemical safety or land management or air pollution and climate change or the faa. The Federal Aviation Administration employs aerospace engineers, civil engineers, electrical engineers, you name it. These agencies employ thousands of people, and they are all civil servants for the most part. Most of the people working in an agency stay even when there is a new president who's been elected. But business interests do not like these agencies. They complain about the fact that agencies have this power, and they complain about the amount of federal regulation there is. And so these corporate interests have spent millions of dollars fighting new regulations in court. And conservative groups have spent millions trying to come up with new legal strategies to fight the administrative state and also to appoint federal judges who aren't fans of the administrative state either. And one very important moment here is in 1984, when all of these conservative interests scored a victory before the Supreme Court.

[Roman Mars]

Okay, so what was that victory?

[Legal Expert]

Well, in 1970, Richard Nixon, famous tree hugger, signed the Clean Air act and also created the epa.

[Roman Mars]

I know he'd be a Democrat today. I mean, like a real crooked Democrat, but a Democrat in terms of his policies, for sure.

[Legal Expert]

Pretty surprising. And the primary job of the EPA is to protect the environment through regulation. But Republicans and corporations hated the Clean Air act when it was signed, and they hated the creation of the epa, but they weren't able to overturn the act or get rid of the agency. But conservatives did find a friend in President Ronald Reagan. In his first inaugural address in 1981, Reagan said, Government is not the solution to our problem. Government is the problem. And Reagan, like every president, got to pick a new head of the epa. And the new head of the EPA turned Reagan's ideas into new regulations. Now, these new regulations defined what it meant to be a polluting source. The word source is a term Congress left undefined in the Clean Air Act. And because the regulations were changed, it actually meant that it was easier for companies to pollute the air. So the new regulation was really a form of deregulation. And an environmental group filed a lawsuit to challenge the new regulations. They argued that the new agency rules conflicted with what Congress wanted in the Clean Air act. And in 1984, the Supreme Court disagreed with the environmental group. Their decision is a landmark case that most people don't know about. It's called Chevron versus nrdc. And in the Chevron case, the Supreme Court sided with the epa. And the court came up with a two part legal test when there are challenges to federal agency regulations. So there's two parts. The first part says, is Congress clear or unclear about the topic in the lawsuit? And if Congress is unclear or if they're ambiguous, then there's a second and important step. If things are unclear, the court should defer or rely on what the agency has done, meaning that the court should leave the agency's interpretation alone, even if the court might disagree. So Chevron is an enormously important case. The Supreme Court decided in 1984 that agencies should get the benefit of the doubt. Why? Because they have the expertise. And when Congress has given an agency this kind of power, well, the agencies are more politically accountable than the courts. That was the thinking at the time.

[Roman Mars]

And it just so happens that in this particular case, the head of the agency in question was trying to allow more environmental damage than was originally interpreted. So that in itself was a win for conservatives, that you could bring someone else in and then the court would defer to that agency. If that agency was headed by a person who wanted no regulations, that could be fine.

[Legal Expert]

Yeah, that's exactly right. So the Chevron case at the time in 1984 is actually a win for conservatives. The EPA allowed more pollution with a less restrictive rule. But politics changed, and agencies continued to grow and created more regulations. And over time, because of the Chevron case, corporations found that it was really hard to challenge federal regulations in court. They had a much harder time winning these lawsuits. And courts relied on the Chevron case in literally thousands and thousands of cases. Each time they were saying, look, when Congress isn't clear, we're going to assume that the agency's interpretation of federal law is reasonable. And if it's reasonable, we'll leave it that way. The Chevron case becomes a major target for corporate interests and political conservatives who want to see less regulation. It's no surprise that in 2017. You can see Steve Bannon, one of Trump's chief strategists, call for what he described as the deconstruction of the administrative state. But, you know, Roman, that phrase, the deconstruction of the administrative state is a tough line to sell politically. It's also pretty tough to sell the line. Let's get rid of Chevron deference. You can't win elections that way. And that's where the deep state comes back in. After all, the deep state sounds pretty sinister and it sounds dangerous and. And it's conveniently very vague.

[Roman Mars]

I see. Yeah.

[Legal Expert]

And then Trump and his supporters start to talk about the deep state, to refer to the government in general, even though they started to use the term to talk just about the Justice Department and the special counsel. So over time, the deep state just means the government and especially the people who work in federal agencies, the people working in the federal bureaucracy who don't change their jobs when there's a new president. So do you remember the attacks on Anthony Fauci during the COVID crisis?

[Roman Mars]

Very well. Yeah.

[Legal Expert]

Right. He was the government's response. He was the face of the government's response to Covid. He's part of those daily Covid briefings, and he's the director of an agency. He is considered an expert, maybe the expert on infectious diseases. But the right attacked him over and over. They called Fauci an agent of the deep state. Remember?

[Roman Mars]

Yeah, for sure.

[Legal Expert]

Yeah. So that was part of the Trump agenda. And Trump did more than just allow his supporters to attack Fauci. Trump also appointed 226 federal judges in his one term as president. Obama appointed 320 judges, but of course, he had twice as much time with his two terms in office. And let's not forget the most important of them. Trump appointed three justices to the United States Supreme Court. Gorsuch, Kavanaugh, Barrett. Justice Gorsuch, in particular, has been especially critical of the Chevron case. And when he was an appeals court judge, he said quite a lot about it. That's where the Atlantic herring comes in. In 1976, Congress passed the Magnuson Stevens Act. It's the most important federal law that regulates fisheries in the American waters. And it's a conservation act, just like the Clean Air Act. But here, the act is meant to protect the environment in the seas and to protect overfishing. With the act, Congress gave power to regulate and manage fisheries to an agency called the National Marine Fisheries Service. In 2020, this agency interpreted the 1976 law to require federal monitors on Ships that fished for Atlantic herring, that little silvery fish. And in the agency's interpretation, that was the best way to accomplish Congress's goals. So this monitor would make sure that the fishermen were following federal law when they fished for Atlantic herring. But the new regulation in 2020 had one twist. Not only did these fishermen have to have a federal monitor on their ships, they'd have to pay for their own monitors. And two groups of commercial fisheries sued. And the heart of this lawsuit is pretty simple. They just didn't want to pay. They weren't arguing that they didn't want monitors. They just didn't want to pay for those monitors. But that was required under the new regulation. Okay, so these two lawsuits kind of seem like a David and Goliath fight, right? Two little fishermen versus the big federal government. But that's not really true. The plaintiffs were represented by conservative legal organizations. These were two different cases that were consolidated together. Each one was represented by a conservative legal organization with financial support from Charles Koch, who's a billionaire. And Koch has supported many other lawsuits attacking federal agencies and government regulations. In the hearing case, the fishermen convinced the United States Supreme Court to review their case. Now let's go back to Chevron, the 1984 case. Okay, if you apply the Chevron case, well, Congress didn't actually say for sure whether fisheries could be required to pay for their own monitors. But if the agency's interpretation of the 1976 act was reasonable, then that should have been the end of the case. But that's not what the Supreme Court decided. And on June 28, 2024, the Supreme Court decided in the case of Loeper Bright versus Raimondo that the herring fisheries were right and that the agency was wrong. And in fact, the Supreme Court didn't just decide that the fisheries service was wrong to require industry funded monitors. Chief Justice Roberts concluded for the majority, Chevron is overruled.

[Roman Mars]

Wow. What did he cite in his opinion as the reason why Chevron is overruled?

[Legal Expert]

So in this case, Loper Bright isn't really a constitutional law case. It's about interpreting another statute. So the supreme court interpreted a 1936 law called the Administrative Procedures Act. When Congress passed this act in the 30s, it gave both courts and agencies the power to interpret federal law. And the 1984 Chevron case gave an important part of this power to agencies. Let them make the regulations and let those regulations stand. But in Loper Bright, the conservative majority decided, well, that was a mistake. In fact, when we take another look at that 1936 law, the administrative Procedures Act. What it really means is that courts should decide, not agencies. Loper Bright, of course, is not just a case about fish because you can tell just by looking at who was interested in the case. Groups that filed briefs in the Supreme Court in support of the fisheries included gun rights groups, trade groups for home builders, paper mills, meat processors, and e cigarette companies. All groups that want less regulation, a whole lot less regulation.

[McDonald's Advertiser]

For a limited time at McDonald's, get a Big Mac Extra Value meal for $8. That means two all beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun, and medium fries and a drink. We may need to change that jingle.

[Legal Expert]

Prices and participation may vary.

[Roman Mars]

And I heard this reported. I mean, surprisingly, the phrase Chevron deference percolated up into actual news items. You know what I mean? And so what does it mean to have the end of Chevron deference?

[Legal Expert]

Well, for the past 40 years, when a federal agency issues new regulations, the companies affected almost always object. They try to do something about it to fight the new regulation. But the Chevron case has meant until this year that if it seems like Congress has written the federal law in a way where it's kind of nonspecific or ambiguous, then the agency gets to interpret it. And no matter what you say in court, the court's going to probably conclude, yes, the agency's interpretation of the law is reasonable. So let's say, like Congress authorizes the Federal Aviation Administration to specify how many bolts there should be on an airplane wing for, like, a safer plane. Okay, but what if the FAA decides that planes should have more bolts on the wings because their agency engineers think that that would be safer? Or let's say we look at the 2022 Inflation Reduction act that was signed into law by President Biden and that gave a federal agency the power to negotiate Medicare prices for drugs. And in fact, the Biden administration just announced that they had negotiated new prices for 10 very popular prescription drugs. And when we think about who should make this final decision, when we talk about the number of bolts that you need to make an airplane safe or whether a drug price is appropriate under federal law, who decides, the agency or a judge? Well, the Loper Bright case now means that the Supreme Court has decided that the final say should go to courts, not agency staff, people who might be trained in scientific data analysis or epidemiology or engineering or public health or climate science. In fact, it should be judges instead of them. And of course, isn't that kind of backward? Because Justice Kagan says in her dissent in the Loper Bright decision. Expertise is good. We don't necessarily have as courts the ability to figure out how to make these determinations. This Chevron deference or relying on the judgments of experts and agencies, it seems like at first an obscure, unimportant doctrine that nobody should care about. But in fact, it's one of the biggest wins in this really long running conservative attack on the federal government. Administrative law might not seem like a terribly important topic in your ordinary day to day life, but it actually does have a very profound effect. And that's why the lawyer for the federal government said to the justices in oral argument that overturning Chevron would be what Elizabeth Preligar called a convulsive shock to the legal system. And she's probably right. And that's also why Jay Sekulow tweeted after the Loperbright case was decided that the U.S. supreme Court just delivered a massive blow to the deep state's unchecked power. And the unchecked power, you mean the decisions keeping us safe and healthy. That's what he means. And Sekulow, of course, is not just a Trump supporter. He was one of Trump's chief lawyers in Trump's first impeachment.

[Roman Mars]

So while I adjust to the horror that that person is happy about this, tell me, what does this have to do with Vance and Schedule F, the thing you mentioned earlier?

[Legal Expert]

Well, it's kind of related because Schedule F is another Trump tool in the war against federal agencies. So at the very end of his term, issued an executive order known as Schedule F. And so when you think about what happens when a new president takes office, the president of the United States has the ability to make a lot of political appointments, putting people in federal positions that are really loyal to the president. And it's actually a large number of positions, about 4,000. But that is dwarfed by the thousands, the tens of thousands of people who work in the federal government who are civil service employees, meaning they have job protections no matter who is president, president of the United States. So Schedule F would politicize a much larger part of the federal government. And that order would have reclassified something like 50,000 federal employees who are now civil servants as political appointees. So that means that if all of these people now became political appointees, a new president could come in, fire them for any reason or really no reason at all, and put in people who are simply loyal to the new president, not because of your experience or your expertise. You'd be hired just because of your political leanings. And so for Trump, Schedule F would mean that Trump would take office and fire tens of thousands of people working in federal agencies and replace them with people who are simply politically loyal to him. Now, in the first Trump administration, he issued Schedule F too late, before it could go into effect. Biden won the election, and President Biden promptly took that executive order away. But Trump has already announced that he intends to reissue Schedule F on day one. Those are the words that he's used if he wins the 2024 election. And this is part of Trump's general campaign platform called Agenda 47, and in that he plans to, quote, dismantle the deep state. And Schedule F has been a big talking point for Trump's running mate, J.D. vance, even before he was on the ticket. Vance said that in 2021, that if he could give just one piece of advice to Trump, that would be to fire every single mid level bureaucrat, every civil servant in the administrative state.

[Roman Mars]

Wow. I mean, just to put people in that don't know what they're doing, doesn't that cause problems too? Or I guess these people, the problem with them is that they're such nihilists that the dysfunction of government, a government that doesn't function, plays into their ideology.

[Legal Expert]

Yeah, a government that doesn't function very well, A government that just simply does whatever the person at the top of the pyramid does. But of course, that sounds awfully like authoritarianism more than a democracy.

[Roman Mars]

Totally. And this is the whole, like, so on another sort of part of the 99pi umbrella, we're talking about the power broker. And the whole part of the early 20th century, politics is all about undoing patronage, which is the sort of awarding of political jobs and the creation of the civil service, because it was considered like the seed of political corruption, was the awarding of jobs to your sort of political cronies. You know what I mean? That was like the whole point. All of the 20th century was all trying to sort of get to the point where you had to have some kind of merit based system for getting a job inside of the government. And it's amazing that the big idea is to just undo all that.

[Legal Expert]

Yeah, I mean, I think the idea here is pretty much a scary one in which you have a vision of the federal government where you have fewer experts, fewer people with decades of experience making decisions about how we live our ordinary lives. I mean, that is really the sort of scary thing, like what kinds of drugs are safe for us to take, whether or not meat should be inspected more regularly. Or less regularly, whether or not rivers can have chemicals dumped into them. These are things that we sort of would like scientists to make decisions about. Not just partisan loyalists for sure.

[Roman Mars]

Because the alternative is what you create laws that are clear and therefore very specific and therefore have tons of loopholes and they're sort of fought over by people who are distinctly not experts. They're barely experts in being in Congress. I mean, this is like they're not the best and brightest. Then you throw it to the courts rather than to the agency. And those people, again, like we talked about Cannon last week or two weeks ago, this is a person that barely understands the law that they're adjudicating. It's just, it's a ridiculous idea. It just doesn't make any sense at all.

[Legal Expert]

Yeah, I mean, it's definitely the case that after the end of Chevron, what we're going to see are many, many more lawsuits over federal regulations. But even from a business perspective, you can sort of understand why in one sense it's harder for businesses now because an agency makes a regulation, you're not sure how long the regulation is going to last. Is someone going to successfully have those regulations rescinded because the court says that's not the right interpretation, or is it going to stay? But of course, if you're a big corporation, you've got millions of dollars at stake. You've got to make some kind of long term plan. And the Loper Bright case does not make that easy at all.

[Roman Mars]

Yeah, if the notion of the Court is that you want to do as much as possible to make a set of sort of heuristics and guidelines such that people are not doing things with such great uncertainty that things don't happen at all. How does this fit into that sort of notion of what the Supreme Court is for? Because my sense over the years of us talking is that, is that that sense of uncertainty is what the Court, independent of it being more conservative or more liberal, the court really hates that.

[Legal Expert]

Well, in theory, that's right. I mean, we should have a system in which there are a set of expectations that shouldn't easily be overturned. And in fact, a big portion of the back and forth between the majority and the dissenters in loperbrite is about the idea of stare decisis. Justice Kagan says in her dissent. Explain to me again why we just decided to discard this opinion. And the majority's best explanation is we didn't like it. And of course that is a pretty terrible set of reasons to say that this Doctrine should be overturned.

[Roman Mars]

Yeah. Is there something in Gorsuch's early writings about the administrative state and his fear of it or distrust of it that indicates where this is coming from, like why these aren't the people to make these decisions?

[Legal Expert]

Well, certainly he's made a lot of critical commentary, even as a judge, about that. This is about unaccountable power. That really, if we're going to have this, what he refers to as a separation of powers. That's how he sees the key issue, that the executive does some things, but that the courts have a role in keeping a check on executive power. And that check on executive power means that you can't just let the agency make its own determinations in a way that it's hard for courts to say. Well, that seems wrong to us.

[Roman Mars]

Yeah. And there's a part of that that does make sense to me. The balance of powers makes some sense to me. But it seems like that doesn't work in the real world. As the real world gets more and more complicated and expertise is needed when it comes to lead levels and pollutants and whatever, how can it just be expected to be an expert of any of those things?

[Legal Expert]

Yeah, I mean, we live through this, right. With the pandemic, who's going to make the decisions about vaccinations versus not being vaccinated? Who's going to allow a safe workplace or in fact require a safe workplace by saying workplaces should have vaccination policies? We kind of ended up leaving it to the judges, not all of whom were in agreement about whether that was a good scientific policy or not.

[Roman Mars]

Well, it sounds like a mess.

[Legal Expert]

Yep.

[Roman Mars]

So, like, okay, so now, given this, I mean, obviously a future court could rule in a different direction when it comes to these things. How do you see this unfolding from here?

[Legal Expert]

Well, you know, to be honest, Chevron, of course, has never been something that's been embraced by everybody. And of course the conservatives have always hated Chevron. And, and there's an argument to be made that maybe the death of Chevron was coming anyway because it had been criticized heavily by the right. But for now, I think most people who are thinking about corporate interests and what businesses should do and the state of federal regulation, I think there's just a lot of uncertainty right now. I think one thing is clear. There are going to be many, many more lawsuits. Some people have said the courts are going to be flooded with new loper bright type of lawsuits, and that seems very likely. And the question is, what are courts going to do to try and harmonize these things, because you really can't have so many different courts giving so many interpretations of different regulations. Right. That really does make life difficult.

[Roman Mars]

Yeah.

[Legal Expert]

Raman, I've got one final note about Loperbright. Justice Gorsuch wrote a separate opinion in which he agrees with the majority. And Gorsuch wrote a lengthy discussion, very lengthy, of why the Chevron case was wrong, or in his words, why it was a grave anomaly from historical judicial practice. The funny thing is that he has a very deep connection to the Chevron decision itself. Reagan's EPA administrator, the person who created those new regulations making it easier for polluters to pollute. Anne Gorsuch, his mother.

[Roman Mars]

Oh, my God, that's so weird. That's so weird and random. And this is probably a thing that was like Pandora's box for her because she was trying to deregulate, allow more pollutants, allow more freedom from the business interests. And in the end it ended up being this thing that could stop all those things. That's amazing.

[Legal Expert]

Of course, he never acknowledges that in.

[Roman Mars]

His oh yeah, well, I'm glad we're here. I had never heard that before. That's amazing.

[Legal Expert]

Wow.

[Roman Mars]

Well, again, fascinating stuff. So happy to talk to you. Thanks.

[Legal Expert]

Thanks, Roman.

[Roman Mars]

This show is produced by Elizabeth Jo, Isabel angel and me, Roman Mars. It's mixed by Hazik Ben Ahmad Fareed. Our executive producer is Kathy Tu. You can find us [e-mail] all the music and what Roman Mars can learn about Con Law is provided by Doomtree Records, the Midwest hip hop collective. You can find out more about Doomtree Records, get merch and and learn about who's on [e-mail] we are part of the Stitcher and SiriusXM podcast family.

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[Legal Expert]

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