On June 28th, the Supreme Court issued a decision in Loper Bright Enterprises v. Raimondo and significantly reduced the policy-making power of federal agencies. With a vote of 6-3, the Supreme Court reversed a 40-year-old precedent referred to as the Chevron doctrine. This doctrine was established by a unanimous Supreme Court decision in Chevron v. Natural Resources Defense Council. The 1984 decision in Chevron held that, if Congress did not directly address a question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as that interpretation was reasonable.

In the 35-page Loper ruling written by Chief Justice John Roberts, the Supreme Court rejected that doctrine, calling it “fundamentally misguided.” Now, the courts are no longer constrained by this limitation and are free to make their own interpretation about issues not directly addressed by Congress in the original statute. The Chief Justice wrote that “courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” rather than allowing the federal agency to address any gaps in statutes.

Frankly, the laws passed by Congress are far less comprehensive than rules written by the federal agencies. That just makes sense. The federal agencies are staffed by teams of subject matter experts and engage in an open regulatory process that brings in additional public feedback. Even a fully-functional Congress doesn’t have their level of expertise – or the bandwidth – to cover every issue they legislate to the same degree.

And, although this decision has been framed as an attack on progressives, the original decision which established the doctrine was actually considered a victory for conservatives. In the original case Chevron v. Natural Resources Defense Council, the NRDC wanted the Environmental Protection Agency (EPA) under President Ronald Reagan to enforce pollution controls at industrial facilities under the Clean Air Act. Of course, the Reagan-era agency was more focused on industry-friendly deregulation than reducing pollution. While we are concerned about the impact of the ruling, administrations change.

For CDR, the deeper concern about reversing this Chevron doctrine is that the Supreme Court is taking a policymaking function away from the elected branches of government and giving it to the unelected courts. We may not like specific rules promulgated by a federal agency, but we have the power of our votes to impact who makes these decisions. Shifting this power to un-elected judges changes that and is dangerous.

The Loper decision will likely have far-reaching effects across the country, including an impact on the rights of people with disabilities. Both the Americans with Disabilities Act and the Age Discrimination in Employment Act are used as examples of laws that have overly broad rules. Additionally, the Home and Community Based Services Settings Rule, the final rule implementing Title IX of the Education Amendments, and the final rule regarding section 1557 of the Affordable Care Act are at risk. Finally, the Lopez decision puts community integration of Disabled individuals at risk because it jeopardizes the final rule implementing Section 504 of the Rehabilitation Act.

Two years ago, the Center for Disability Rights expressed our concerns about the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In that blog post, we acknowledged that there are a range of opinions in the Disability Community about the underlying issue in that case, but – whatever those opinions may be – it is still very important to understand the implications that the Dobbs decision and the new direction of the Supreme Court would likely have on the rights of people with disabilities, specifically the freedom of individuals who rely on Long Term Services and Supports (LTSS).

We were – and remain – concerned that this shift in the court puts the Olmstead decision at risk of being reversed. In our blog post two years ago, we pointed out that Justice Clarence Thomas – in his Olmstead dissent – had already laid out his approach to reversing Olmstead – questioning the basis for any claim of discrimination in that case. He was in the minority 25 years ago, but now has a majority of justices on a court who would likely agree with him. Every Disabled individual and our allies should be concerned.

In the wake of the Dobbs decision, CDR called on the Disability Community, members of Congress and the Biden Administration to work together to affirm – in statute – that Disabled people have a right to live in freedom, by passing the Latonya Reeves Freedom Act. Passing this legislation made sense, as it would protect the hard-fought victories we and strengthen our right to live in freedom, but it was opposed by insurance companies and the unions representing institutional workers.

Instead of supporting federal legislation codifying our right to live in freedom as Disabled individuals, in May of this year, the Biden Administration finalized rules under Section 504 of the Rehabilitation Act of 1973. Among other changes that significantly advanced the right of people with disabilities, the Health and Human Services (HHS) rule affirmed that recipients of federal funds are required to provide services in the most integrated setting, such as an individual’s own home. Two months ago, when these rules were finalized, the HHS rules would have been critical to supporting any legal challenge to Olmstead because the courts would have been required to defer to them. Just eight weeks later, the Supreme Court gave the federal courts the power to ignore those rules, make their own decision, and reverse Olmstead.

If you feel like a character in a Steven Spielberg movie who is scurrying down a tree to avoid getting crushed by a falling vehicle on an island overrun with carnivorous dinosaurs, you have an idea where things stand with Olmstead.

CDR isn’t the only organization raising this concern. Other national disability rights organizations have acknowledged this threat, and earlier this year the Think BIGGER Do GOOD Policy Series issued a policy paper warning about this threat. This policy paper, Judicial Threats to Olmstead and the Americans with Disabilities Act, states:

The reasoning used in Olmstead, related lower court decisions, and executive agency guidance and decisions regarding ADA compliance are all at risk of being reversed or rejected… Additionally, recent decisions regarding individual rights and antidiscrimination suggest that, should the question be presented, Olmstead could be overturned, despite its almost 25-year existence.

Although it highlighted the risks, the policy paper also affirmed that “legislation can protect the vulnerable.” It points out that the Supreme Court’s decision in Bostock v Clayton County, Georgia provides hope. The policy paper noted in the Supreme Court’s Bostock ruling, “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”

Once again, the path forward remains clear. Rather than wait for the courts to reverse Olmstead, Congress needs to pass legislation affirming and strengthening the right of Disabled individuals to live in freedom. That legislation is the Latonya Reeves Freedom Act (HR 2708/S 1193), and the good news is that we are already positioned to pass the bill in the House.

Right now, more than a majority of members of the House of Representatives are cosponsors of this legislation. Even so, the legislation is locked down by House leadership under Speaker Mike Johnson just as it was under Speaker Nancy Pelosi in the 116th Congress. Advocates have been working the Hill and have been in discussions with Energy and Commerce Committee Chairwoman Cathy McMorris Rodgers about giving the bill a hearing, but even without a hearing, Congress has mechanisms that can be used to move the bill forward for a vote. The votes are there, members of Congress just need to political will to make that vote happen. With the upcoming conferences in Washington DC and elections this fall, now is the perfect time for the Disability Community to demand that Congress FREE OUR PEOPLE NOW!