On Tuesday, the Supreme Court heard one of those under-the-radar cases that could have a profound effect on millions of lives. Here in the shebeen, we have long believed that Chief Justice John Roberts has only two policy issues on which he is utterly inflexible—destroying voting-rights legislation and ushering in a regime of pre-New Deal laissez-faire. This case, Corner Post v. Board of Governors of the Federal Reserve System, was one of the latter.
Corner Post is a convenience store/truck stop in North Dakota, and the fact that they are the named plaintiffs in this case is another one of those bait-and-switch David-and-Goliath maneuvers of which plutocrats and their interest groups are so fond. Behind the lawsuit is a who's who of corporate front groups, including the Koch operations and the National Federation of Independent Businesses. From Reuters:
Arguments in the case focused on whether the store was too late in bringing its 2021 lawsuit challenging a 2011 Federal Reserve regulation governing how much businesses pay to banks when customers use debit cards to make purchases. The store, called Corner Post and located in Watford City, appealed after lower courts threw out its lawsuit on the basis of missing the six-year statue of limitations that generally applies to such litigation. Corner Post argued it should not be bound by the statute of limitations because it opened for business in 2018, meaning its legal injury arose only after the deadline had passed...Swipe fees, also called interchange fees, reimburse banks for costs involved in offering debit cards. The fees are determined by Visa, MasterCard, and other card networks, with a cap of 21 cents per transaction set under the Fed's 2011 rule.
If the Supreme Court rules in favor of Corner Post, it likely would unleash a torrent of lawsuits challenging federal regulations that had been settled law for a decade or more, something that Justice Elena Kagan sniffed out during oral arguments on Tuesday. Not only that, but Kagan's questioning indicated that she is aware that this case was merely part of the general deregulation campaign through the federal courts.
Kagan: Mr. Snyder, I want to emphasize that I'm asking you a hypothetical question. It's an "if" question. There is obviously another big challenge to the way courts review agency action before this Court. Has the -- has the Justice Department and the agencies considered whether there is any interaction between these two challenges? And, again, you know, if Chevron were reinforced, were affirmed. If Chevron were reversed, how does that affect what you're talking about here?
Kagan, of course, was referring to the pair of huge administrative law cases—Loper Bright v. Raimondo and Relentless v. Department of Commerce—that the Court heard back in January in which the Court seemed poised to overturn the "Chevron deference," a decision that would undo decades of federal regulatory law and give the federal judiciary unprecedented power to do so. Kagan wanted Benjamin Snyder, arguing the government's case, to explain how a victory for Corner Post would resonate in a post-Chevron world. Snyder's answer was, in a word, ominous.
Snyder: So I want to be careful here. I mean, we of course have thought about it. I think what I'd say is that a decision for Petitioner here would magnify the effect of any other decisions changing the way that this Court or other courts have approached administrative law questions, because it would -- it would potentially mean that those changes would then be applied retroactively to every regulation that an agency has adopted in the last, I don't know, 75 years or something.
Which is entirely the point here. The one thing you can say about, say, Citizens United, is that it effectively demolished any possible campaign finance reform until the great gettin' up morning when the decision itself is overturned. That's what the carefully manufactured conservative majority is going for here—to kill the New Deal so that it never rises again.
Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.
