Cristian Farias
@cristianfarias.com
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Legal journalist and beachgoer. I write and talk about courts, the law, and the politics shaping them in a number of places. Working on a new thing. Signal: cristianfarias.33
![Text of footnote:
There is an error in the Supreme Court's analysis in Loper Bright. Much of the Court's reasoning (and a part of Justice Gorsuch's concurrence) is devoted to criticizing the Chevron opinion for ignoring section 706 of the Administrative Procedure Act, 5 U.S.C. § 706. See, e.g., 603 U.S. at 397-400, 411-12; id. at 428 (Gorsuch, J., concurring). The Court's critique is unfounded. It is unfounded because section 706 of the APA did not apply to judicial review of the EPA rule at issue in Chevron. Section 706 did not apply because Chevron was not an APA review case. The Clean Air Act superseded the APA: "The provisions of section 553 through 557 and section 706 of Title 5 [the APA] shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies." 42 U.S.C. § 7607(d)(1). The problem the Court identified in Loper Bright was not with Chevron itself, but with courts, including the Supreme Court, indiscriminately adopting the Chevron formula in later cases in which section 706 of the APA did apply.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:jech7rem6vijss4euf4fijao/bafkreifkanop6tkhddyco4lfu2wvvo4mmb6zu7r5sqrtcuealgmlaleqdy)
![Screenshot of court opinion, which reads, in part:
Haitians are “eating the dogs . . . . They’re eating the cats.
They’re eating—they’re eating the pets of the people that
live [in Springfield, Ohio].” 2 App. 802; see id., at 644. And:
Haitians are also eating “other things too that they’re not
supposed to be.” Id., at 698–699. And: Haitians in the
United States “probably have AIDS.” Id., at 698. And:
Haiti is a “shithole country,” which is “filthy, dirty, [and]
disgusting.” Id., at 698–699. And: Haitian immigration is
“like a death wish for our country.” Id., at 698. And: Haitians, along with some others, are “poisoning the blood” of
our country. Id., at 698. And: “Why is it we only take people
from shithole countries” like “Haiti [and] Somalia”? “Why
cannot we have some people from Norway [and] Sweden?”
Id., at 699. The majority briefly replies that those remarks
are not “overtly racial,” ante, at 21, but it is hard to know
what that means. Haitians are Black. (Norwegians and
Swedes not so much.) The references—of filth, disease, and
primitiveness—are shot through with racial stereotypes
and tropes. It is hard to imagine the statements being
made today of any White community. No very “sensitive
inquiry,” of the kind Arlington Heights compels, is needed
to see them for what they are, 429 U. S., at 266; judges, as
we often say, are “not required to exhibit a naiveté from
which ordinary citizens are free,” Department of Commerce,
588 U. S., at 785. The statements fairly shout, in their racial undertones and overtones alike, that race entered into
the President’s resolve to remove Haitians from this country.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:jech7rem6vijss4euf4fijao/bafkreicionfldal57lsf6ksqx46saphwcfbtmxb3zkpenqo7odjkb4k72i)
