The Supreme Court’s overturning of the so-called Chevron deference doctrine in its June 28 Loper Bright decision has been called by many, both on the left and right, possibly one of the most far-reaching decisions of the entire court under Chief Justice John Roberts. For very different reasons, of course.
Many are celebrating because the ruling cuts back the reach of the so-called administrative, or regulatory, state. Under the Chevron doctrine, federal agencies were able to expand their authority with little check from courts. The original 1984 Chevron ruling stated that the courts must defer to an agency’s own interpretation of its rules in cases where the statutory language was ambiguous just as long as their interpretation was “reasonable.”
With a loophole like that, the ruling was pounced on time and time again by lower courts and supporters of an aggressive federal government. What followed was a 40-year uninterrupted expansion of agencies’ powers and prerogatives.
Chief Justice Roberts’ recent ruling, however, made this point: “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the (1946 Administrative Procedures Act) requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
The original Chevron decision in 1984 didn’t even refer to the APA, on which it was supposed to be based. Its assumption that Congress intended agencies, rather than courts, to resolve confusion in the law became an enabling mechanism that never had a basis in the Constitution, judicial precedent or statutory law.
The legal doctrine dating back to 1984 didn’t make much sense, according to legal scholars. It not only offered judges an oversimplified way to get out of very difficult decisions, but also biased them in favor of the government nearly every time. Judges would regularly call upon and use the agency’s interpretation of the relevant statute, and move on. Overturning Chevron is, without a doubt, the correct decision.
But, some observers are wondering if Loper Bright will do anything to help prevent the most egregious administrative abuses. For example, the EPA’s most overreaching administrative abuse—the so-called Clean Power Plan, which is now on its second iteration—is likely to continue because the agency’s method of operation in recent years has little to do with crafting power plant rules that will survive judicial review as originally intended. Instead, the goal of those rules looks increasingly to punish politically-disfavored industries by mandating standards impossible to meet and inserting regulations that lead to market uncertainty. Will the EPA’s power be slowed down now? Highly unlikely.
Meanwhile, those defending Chevron claim the overturning of the doctrine leaves the environment without protection, although the country didn’t have the Chevron doctrine when Congress came together to pass the Clean Water Act in 1970. That has become the framework for all subsequent environmental legislation that has since passed.
The Chevron doctrine made it incredibly difficult for ordinary citizens to take on federal agencies and defend themselves against charges, even in obvious cases of abuse. We’ll never actually know how many tens of thousands of citizens surrendered their rights and gave up rather than face the legal hurdles and expenses of a prolonged fight with federal agencies—a fight in which Chevron stacked the deck in the agencies’ favor every single time.
Suing a federal agency remains a huge and costly decision not to be undertaken lightly. Contrary to what the White House claimed in the wake of the recent ruling, Loper Bright will not be a “convulsive shock” to the legal system. However, it does restore a proper division of government powers to Constitutional proportions, and it also will make it easier for ordinary citizens to challenge agencies that overreach and abuse their statutory authority.
The end result is that courts are now back to where they were before Chevron, and the Supreme Court’s majority opinion instructs them to find the best reading of disputed statutory language. To my mind, that makes sense.
It’s certainly not a big secret that administrative agencies have significantly overstepped their statutory authority in recent decades. The Loper Bright ruling is, as I understand it, a necessary course correction that offers hope for a return to the separation of powers under the Constitution and, hopefully, fewer regulations going forward.
In closing, on behalf of the staff of the Mississippi Business Journal we thank you for the outpouring of phone calls and emails we received from the July edition which was the first edition published under our ownership. To subscribe or advertise, please visit our website at www.msbusinessjournal.com or call our office at 601.364.1000. We are on the lookout for business stories statewide, so please don’t hesitate to email me your ideas at scott@msbusinessjournal.com.