Your local USDA office may soon be your local federal courthouse

Farm and Food File for the week beginning Sunday, July 14, 2024

The U.S. Supreme Court’s June 28 ruling to overturn the Chevron deference was a business-favoring decision to upend 40 years of legal precedent and redirect federal power from agencies like the Department of Agriculture (USDA) to the courts and Congress.

Big Ag loved the news. The National Cattlemen’s Beef Association “celebrated the ruling,” and Big Meat’s lobbyist saw it as the bullet to defeat the Biden Administration’s “misguided and damaging proposed rules” to reform the Packers and Stockyards Act.

House Ag Chairman Glenn Thompson (R-PA) thanked the Court for “reaffirming a core principle of our Constitution: the power to legislate rests with Congress.”

True, but also true is that the power to legislate always rested with Congress; it doesn’t need Chevron gutted to do its job better. It just needs to do its job better, period.

Moreover, it’s pretty rich for any current Ag committee member to comment on their inherent power to legislate given the fact that this Congress is nearly two years late on legislating anything that passably resembles a Farm Bill.

The irony of the Court’s Chevron decision is that it gives both Congress and the federal court system a larger role–in short, more work and a new bureaucracy–to write and interpret legislation when neither institution has shown an interest or ability to do either.

Ian Millhiser, a Vox senior correspondent and the long-time U.S Supreme Court watcher, explains this legislative trap in a lengthy, July 8 post titled “The Supreme Incompetents.” In it he takes a measure of the Court’s recent decisions and finds most either incomplete, unworkable, unsuitable or all three.

“All of the United States’ most important governing institutions are failing at once,” he begins. “Congress, of course, has barely been able to function… The Republican Party has atrophied into a cult of personality” and the “Democratic Party… may be unable to dislodge a senescent leader…”

“And then there’s the Supreme Court,” Millhiser, a Duke University law school graduate continues, that if “the justices did not wield such awesome power… most… would be laughingstocks. Few people this famous are so ostentatiously bad at their jobs.”

But they better get better and in a hurry, he explains, because six of them just made “the Supreme Court the final word on hundreds, and even thousands, of policy questions that Congress delegated to federal agencies like the EPA or Department of Labor.”

And, of course, USDA.

That means there’s a good chance that this Court’s judges–eight of which graduated from either Harvard or Yale law schools–might very well determine whether your crop insurance claim is valid or if your neighbor can legally spread manure on his hilly pasture next to your family’s well. 

That’s if they ever get around to it, suggests Millhiser, because the Supreme Court has become decidedly unproductive.

In fact, “As a young Reagan White House lawyer in the 1980s,” he explains, Chief Justice John Roberts joked that the Court “can hear only roughly 150 cases each term,” suggesting that this limit kept “the Constitution… safe for the summer.”

The joke, as it turns out, is on us: The Roberts-led Court decided only 59 cases this term. This limited, hand-picked docket means the “Court… no longer really functions as a court” because it spends “more and more time resolving political questions that often should be decided by people who hold elective office.”

Going forward that likely means “(f)ederal judges will now have the first and final word about what statutes mean,” Craig Green, a Temple University law professor, told the AP.

Not economists, doctors, chemists, agronomists, veterinarians or any expert. Instead, a federal judge–whose docket already is backlogged by years–will be the “first and final word.”

That simply won’t work and that’s this Court’s plan.