With the Supreme Court’s new term having started this week, I want to use today’s newsletter to give you context on the issue that Adam Liptak — who covers the court for The Times — calls “the story of the term”: business regulation.
Even before the court moved to the right over the past several years, business regulation was an area in which its rulings tended to be conservative. Thirteen years ago, Adam wrote an article explaining that the court led by Chief Justice John Roberts was the most business-friendly Supreme Court in modern history.
Roberts and his colleagues tend to be skeptical of government regulation that tries to protect the environment, consumer safety or workers’ rights. In all these areas, the court has often taken a laissez-faire approach, allowing corporations to behave as their executives think best.
This outlook hasn’t been restricted to Republican-appointed judges, either. Democratic appointees who lean left on social issues like abortion, gay rights and guns have been more conservative on business regulation. This shift has been part of the so-called neoliberal revolution in economic policy that took off in the 1980s. Free markets, according to this view, are more efficient than government can be.
“The modern judge is quite economically libertarian, Republican and Democrat alike,” Adam told me.
Still, there have been limits to the court’s libertarianism. The E.P.A., F.D.A., I.R.S. and many other Washington agencies still exist, after all. If you talk with many corporate executives or their lobbyists and lawyers, you will hear that they feel over-regulated — and they have continued to bring lawsuits trying to lighten the burden of government.
The story of this term, to use Adam’s phrase, is whether corporations will persuade the Supreme Court to go further than it previously has and strike down whole new categories of regulation. Three separate cases raise that prospect.
First up
The justices will hear arguments in the first of those three cases this morning, involving the Consumer Financial Protection Bureau, known as the C.F.P.B. The case’s details are technocratic, but the impact could be large.
When Congress and President Barack Obama created the agency in 2010, after the financial crisis, they funded it using transfers from the Federal Reserve. The goal was to shield the bureau from back-and-forth partisan politics; the Fed is a semi-independent agency for similar reasons. Elizabeth Warren, then a law professor, who helped create the bureau, was worried that Republicans would try to starve its budget.
A banking industry group has argued that this funding structure is illegal, saying that federal agencies should be accountable to Congress. The bureau’s defenders respond that it already is: Congress established the agency by passing a law that funded it in a specific way. To change this arrangement, the defenders say, Congress should have to pass a new bills that a president signs.
Last year, a federal appeals court based in New Orleans — the Fifth Circuit, perhaps the country’s most conservative, having been shaped by President Donald Trump’s appointees — agreed with the plaintiffs. Legal observers aren’t sure what to expect now from the Supreme Court.
On the one hand, conservative justices dominate the court. On the other, at least some of them have seemed uncomfortable with how far the Fifth Circuit has gone in other cases.
The biggest case
An even more significant business case this term involves a 1984 Supreme Court decision that has come to be known by the shorthand “Chevron deference.” Under Chevron deference, the court gave regulatory agencies leeway to interpret laws that Congress had left vague.
Corporate lobbyists have long chafed at the ruling, believing that regulators should have only the powers that Congress has explicitly given them. Undoing Chevron has been a central goal of the conservative legal movement. Conservatives talk about the importance of weakening “the administrative state.”
Both sides in the Chevron case agree that the stakes are large. When Congress passes a law, it cannot anticipate all the ways that the economy will change in coming years. If regulators have only the powers that Congress explicitly gives them, many regulations — on the environment, consumer safety, worker safety and more — would be vulnerable to legal challenges.
“Overruling Chevron,” the Biden administration argued in a recent brief, “would be a convulsive shock to the legal system.”
The third major business case this term involves the Securities and Exchange Commission. Depending how the court rules, the S.E.C. could have less power to pursue fraud cases. The justices have not yet set dates for oral arguments in the Chevron and S.E.C. cases.
More on the court
Stacy Cowley — who covers the C.F.P.B. for The Times — profiled its director, Rohit Chopra, 41, who is fighting thyroid cancer.
This term also includes cases on abortion, gerrymandering, guns, opioids and social media. We’ll preview them in future newsletters. (Here’s an overview.)
The court heard arguments about a federal law that lets judges ignore minimum mandatory sentences for some drug offenses.
THE LATEST NEWS
Kevin McCarthy
Representative Matt Gaetz called for a vote on removing Kevin McCarthy as House speaker, after McCarthy worked with Democrats to prevent a government shutdown.
The vote is expected within days.
McCarthy has little chance of surviving without help from Democrats. They are considering what they could ask in return.
Donald Trump
At the start of his New York civil fraud case, Trump called for the judge to be disbarred. Read takeaways from the first day.
When Trump first suggested using the military against Mexican cartels, defense officials considered the idea ludicrous. Republicans now widely support it.
Congress
Senator Robert Menendez’s corruption trial is scheduled for May, a month before the New Jersey state primary. He has not said whether he intends to run.
Three people carjacked Representative Henry Cuellar at gunpoint near his home in Washington D.C. He was not harmed.
Representative Dean Phillips will step down from House Democratic leadership. He’s considering a primary challenge against Biden.
More on Politics
A North Dakota state senator, his wife and two of their children died after the plane he was piloting crashed at an airport in Utah.
Hunter Biden is expected to plead not guilty when he’s arraigned on gun charges at a Delaware court today.
International
The U.N. approved Kenya’s plan to send security personnel to Haiti, where gang violence is rampant.
After a fire at an Iraqi wedding hall killed at least 119 people, investigators called for local officials to be fired for failing to enforce safety standards.
U.S. officials say Russia intends to spread election disinformation to undermine Western support for Ukraine.
Palestinian herders are abandoning their homes as a result of intimidation by Israeli settlers.
Seven months after deadly earthquakes hit southern Turkey, some families are still living in tents.
Technology
At Google’s antitrust trial, the C.E.O. of Microsoft testified that Google’s stranglehold over search was so tight that his company could not compete.
Sam Bankman-Fried, founder of the failed crypto exchange FTX, goes on trial today. A new book by Michael Lewis offers details of the firm’s collapse.
Hollywood Strikes
The striking actors’ union and Hollywood studios had their first talks in months. Negotiations will continue tomorrow.
“We’ve been gone so long, ‘The Bachelor’ is now a grandfather”: Late night shows returned for their first broadcasts since the writers’ strike ended.
Other Big Stories
Charlotte Sena, the 9-year-old girl who disappeared at a state park, is safe. The police found a fingerprint on a ransom note and raided a suspect’s home, where Charlotte was hidden in a cupboard.
Young children face a greater risk of eviction than any other age group. The risk is most acute for Black children.
The Nobel Prize in Physics was awarded to three scientists — Pierre Agostini, Ferenc Krausz and Anne L’Huillier — for their work on electrons.
Opinions
Americans without a four-year college degree are struggling. Removing B.A. requirements for jobs would help, Anne Case and Angus Deaton write.
Here’s a column by Jamelle Bouie on Biden.
MORNING READS
Never too old: At 104, Dorothy Hoffner wanted to skydive again. Watch her jump.
Grizzlies: What’s behind all the recent stories about rogue bears?
Windows to the soul: To fast-track intimacy, an event in Brooklyn encourages daters to engage in extended eye contact.
Lives Lived: Echo Brown mined her life to create a one-woman show about Black female identity and two young adult novels. She died at 39.
SPORTS
N.F.L.: The Seahawks embarrassed the Giants at home last night in a 24-3 win.
M.L.B. playoffs: The baseball postseason starts today with a single question looming: Can anyone beat the Braves?
Recovery: Bronny James, the 18-year-old son of LeBron James who suffered cardiac arrest during practice two months ago, is doing “extremely well,” his father said.
ARTS AND IDEAS
Behind our scenes: If you’re interested in The New York Times, we recommend a new history of the institution. It’s called “The Times,” and Adam Nagourney — a longtime reporter here — wrote it. The company did not have approval over it.
The book, Julia Klein wrote in The Los Angeles Times, is “an often enthralling chronicle of four decades (1976-2016) of management upheaval and digital transformation” and “delivers the gossipy goods, thanks in part to interviews with nearly all the surviving principals.” The central theme is how the company survived the mortal threat of the digital revolution.
More on culture
Beyoncé announced a concert film of her Renaissance World Tour will be released in theaters on Dec. 1.
THE MORNING RECOMMENDS …
Make a smoky eggplant salad infused with cumin.
Buy fewer skin care products. See how many dermatologists recommend.
Level up your pie-making skills with these tools.
Create a cozy home movie night on a budget.
GAMES
Here is today’s Spelling Bee. Yesterday’s pangram was bigoted.
And here are today’s Mini Crossword, Wordle, Sudoku and Connections.
Thanks for spending part of your morning with The Times. See you tomorrow. — David
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