Four justices appeared absolutely determined, on Wednesday, to overrule one of the most consequential Supreme Court decisions in the Court’s entire history.
Chevron v. National Resources Defense Council (1984) is arguably as important to the development of federal administrative law — an often technical area of the law, but one that touches on literally every single aspect of American life — as Brown v. Board of Education (1954) was important to the development of the law of racial equality. Chevron is a foundational decision, which places strict limits on unelected federal judges’ ability to make policy decisions for the entire nation.
As Justice Ketanji Brown Jackson said during Wednesday’s arguments, Chevron forces judges to grapple with a very basic question: “When does the court decide that this is not my call?”
And yet, four members of the Supreme Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — spent much of Wednesday’s arguments in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce speaking of Chevron with the same contempt most judges reserve for cases like Plessy v. Ferguson (1896), the pro-segregation decision rejected by Brown.
The open question is whether the Court’s four most strident opponents of this foundational ruling can find a fifth vote.
None of the Court’s three Democratic appointees were open to the massive transfer of power to federal judges contemplated by the plaintiffs in these two cases. That leaves Chief Justice John Roberts and Justice Amy Coney Barrett as the two votes that remain uncertain. To prevail — and to keep Chevron alive — the Justice Department needed its arguments to persuade both Roberts and Barrett to stay their hands.
Chevron Deference basically says that the actions of a federal agency cannot be questioned by anyone outside that agency; that the agency is accountable only to itself.
Regulatory capture is a major problem throughout government. Chevron Deference enables regulatory capture by denying judicial review of an agency’s enforcement priorities.
Edit 1: Chevron Deference effectively prohibited judicial review of the FCC’s deeply unpopular decision to suspend Net Neutrality in 2017.
Edit 2: Chevron Deference effectively prohibits judicial review of NHTSA CAFE standards, which are incentivizing manufacturers to radically increase vehicle sizes, thus increasing total emissions.
Chevron deference means that federal agencies (FDA, SEC, OSHA, etc) can regulate their respective areas without Congress needing to pass a law for each regulation.
This is important because Congress moves incredibly slowly, and there are far far too many specific instances that would need to be legislated - there is literally not enough time spent in session.
Overturning Chevron would make things like lead in gasoline legal once again - it was only ‘banned’ by an EPA rule, congress also didn’t specify what actions to take in the Asbestos Hazard Emergency Respond Act.
The Safe Drinking Water Act, Clean Air act, and so on would effectively be repealed. These were acts of Congress, but the text of these laws does not spell our allowed levels of various pollutants and punishments for exceeding them, so it would be toothless.
In short, it would be an absolute disaster. Even if you think there are too many regulations, eliminating all of them, across nearly all facets of life, overnight is the worst way to go about this imaginable.
I agree completely: the agencies do need to be able to enact specific policies without having to petition Congress to enact them.
The problem isn’t that the courts are deferring to the agencies. The problem is the degree of deference. I have no problem with presuming agency policies are valid, provided a plaintiff is afforded the opportunity to rebut that presumption in court.
Yes, Chevron deference made it easier for the EPA to take action against polluters. Chevron Deference also made it effectively impossible for net neutrality proponents to challenge Ajit Pai’s FCC.
Okay, but isn’t the current setup such that deference is only a concern for issues that have already passed through formal law?
I’m not sure I understand your question, but I am going to say “No”. Deference only applies where the law is not specific.
But it only applies to to laws. Unless I misunderstand what you mean by “policies”, it shouldn’t apply there. Since it sounds like you’re worried about overreach due to application of chevron deference, I was trying to see if I followed your train of thought correctly.
In my extremely limited understanding, the issue with the RIFO and Chevron Deference is that the gap is so damned wide with regards to how to regulate the internet that there needs to be a better test than “does the solution proposed in the RIFO fill the gap?” I would consider the RIFO to be such an outlier in cases of chevron deference law that it almost looks like a strawman when compared to other uses of chevron deference. We should definitely shore something up to allow future questioning of the wisdom of courses of action recommended by agencies when consulted in deference matters once the consequences of such deference have come to fruition, but that very possibility (as I understand it) is part of WHY the deference to agencies occurs instead of simply allowing judges to decide. The people at the agencies, being theoretically put in power for a set term, have more to lose from bad decision-making than judges-for-life do.
Unsure why you’re getting downvoted on this, this comment isn’t advocating for some corporate state or whatever.
The government is dysfunctional. Both keeping or getting rid of the Chevron Deference has problems. The fact this had to be ruled on in the first place is incredibly problematic, and made worse now that Congress is barely functional.
Not to go alarmist and I recognize this was in play for his first term, but if Trump wins 2024, the Chevron Dereference could also be abused for all sorts of practically-untouchable changes.
I initially didn’t adequately demonstrate my concerns, and differentiate them from those coming from Republicans. People assumed I was a shill.
I’ve added a couple examples to better demonstrate how Chevron overreaches.
I don’t know that this court is the best one to overturn Chevron, but I know it needs to be overturned and replaced with something a little more reasonable.
Wickard v. Filburn also needs a similar degree of correction.
That is not what it says AT ALL.
The very first step is a look at rather or not the agency’s interpretation fits the construction of the statute. Then, the regulation can only be enforced if the agency’s interpretation is reasonable and not arbitrary.
Your interpretation would put policy making in the hands of the courts. You claim that it is what prevented net neutrality from remaining law, but what stops a court from claiming there is no authority to regulate net neutrality at all? What makes you think that a judge would rule against CAFE standards as now enforced? You do realize how packed the judiciary is with right wing judges?
No. What you are describing is how deference should work, not how it actually works. If it worked the way you say it does, I would have no problem with it. We are essentially in agreement on what should be happening.
Chevron deference is a two-step test. The first step is whether the statute explicitly authorizes the agency’s actions. If not, the second step asks whether the agency’s policy could conceivably arise from the statute.
The “reasonable” and “not arbitrary” questions you’re talking about only arise after those two steps have been taken. Chevron Deference says that the agency - not the court - is solely responsible for answering those questions.
With net neutrality, the courts ask whether Congress explicitly intended to suspend Net Neutrality, and concludes they did not explicitly require it. They next ask whether suspending net neutrality is a power conveyed to the FCC by statute. Indeed, the FCC should and does have that power. The plaintiff then wishes the court to ask whether the suspension of net neutrality is fair, reasonably, appropriate, not arbitrary, necessary and proper, etc. But, the court points to Chevron Deference and tells the plaintiff that only the agency can answer such questions.
Whether we agree that this is a fair and accurate summary of Chevron Deference, we can agree that the system I just described is not appropriate, while the system you described is appropriate. The fundamental difference between the two systems is whether the courts should or should not be empowered to judge the “reasonableness” of the agency’s interpretation.
The agencies are packed with right wing directors and executives every time we have a GOP president.
While the courts are packed with right-wing judges, plaintiffs in major cases largely avoid them by “shopping” for the judges they want: they can raise their questions in courts known to be friendly to their positions.
You are not correct.
https://www.law.cornell.edu/wex/chevron_deference
Yes. The the right wing courts will uphold their interpretations and block liberal interpretations, so what will be left is only the conservative interpretation regardless of the president.