From the MANHATTAN CONTRARIAN
Francis Menton
The rush of end-of-term decisions from the Supreme Court, not to mention last night’s presidential debate, gives me many more potential topics to write about than I could ever get to. How to choose? On the subject of the presidential debate, I doubt that I have anything to say that a hundred others have not said in the past 24 hours. So then, which of the latest crop of Supreme Court decisions is the most important?
On that last question, my vote goes to Loper Bright Enterprises v. Raimondo. This is the case that has rather emphatically overruled the 1984 case of Chevron v. Natural Resources Defense Council.
If you have read something about either the new Loper Bright case or the prior (1984) Chevron case, you have undoubtedly seen the issue of the two being defined in terms of “deference”: that is, when the legality of a regulatory action of a federal agency is challenged in court, should (or must) the court “defer” to the interpretation that the agency itself has given to the governing statute, or to the challenged regulation? Or is the interpretation of statutes and regulations fundamentally the job of the courts, which therefore must not be left to the agencies.
When put in these terms, the issue seems dry and technical, and it’s hard to see why it is important. But it is hugely important. The reason is that this issue of what they call “deference” is a big piece of what puts the government on a one-way upward growth ratchet.
I had a post all the way back in March 2017 that laid out the stakes in this “Chevron deference” game. The occasion for the post was that Neil Gorsuch had been nominated to the Supreme Court by newly-elected President Trump, and in some decisions that Gorsuch had written as an appeals court judge he had staked out a position critical of this deference. In one case, Gorsuch had written that “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.” Gorsuch’s position on this subject became an issue in his confirmation. However, he was confirmed, and took his seat in April 2017.
My post re-framed the question not in the dry terms of “deference,” but rather in terms of how such judicial abdication allows the government to grow without check:
“Chevron deference” is the ultimate unfettering of the government to enable it to expand as much as it wants, and with nothing to stop it. Of course every agency interpretation of a statute or regulation will be in a way to give the agency itself more power! For Exhibit A, look to the EPA under Obama, which has interpreted the term “waters of the United States” to cover every puddle and wet spot (in order to claim jurisdiction over a good half of all private land) and has determined that a colorless, odorless gas (CO2) is a “danger to human health and welfare” (in order to claim jurisdiction over the entire energy sector of the economy).
Loper Bright is explicit that Chevron is getting overruled. Chief Justice Roberts is the author of the majority opinion. The basis for the decision is fairly narrow, mainly that the Administrative Procedure Act of 1946 provides that when a regulation is challenged, the courts will decide “all relevant questions of law.” Justices Thomas and Gorsuch, in separate concurrences, point out broader reasons why Chevron deference was fundamentally wrong. Thomas notes that such deference is in conflict with the separation of powers, and the basic function of the courts to interpret the law. Gorsuch makes the point that the courts must not favor either side in a case before them, but the Chevron rule fundamentally alters that rule to favor the government.
Will the overruling of Chevron bring about a significant change in the dynamic of endless government growth? I think so, but perhaps not immediately. Note that Loper Bright is coming now near the end of a Biden term, where the odds seem to increasingly favor the return of a Republican administration in 2025. Such a new administration will be highly likely to seek large-scale roll-backs of recently issued regulations, most notably in the areas of climate and energy. The Chevron doctrine has been useful to agencies in regulatory roll-backs as well as expansions. Obviously there have been far fewer roll-backs than expansions over the past many decades. But indeed the Chevron case itself arose in the context of a regulatory roll-back by EPA during the Reagan administration, which roll-back had been blocked by the DC Circuit. The DC Circuit is currently dominated by Biden and Obama-appointed judges, who can be expected to resist regulatory roll-backs of a new Trump administration.
So this process will take years to play out. But overall, my view is that the end of Chevron is good news for those resisting the growth of the government.
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