I've seen a surprising amount of confusion over what it means that the Supreme Court has killed "Chevron deference."
But it's not complicated. In the Chevron case 40 years ago, the Court didn't say that federal agencies could just make up their own rules—or that judges couldn't overrule them. Judges can and do overrule agencies all the time.
All the Court said is that judges should defer to agencies if (a) the law is ambiguous, (b) the agency's interpretation is a "rational" and "reasonable" one, and (c) the interpretation is reached through formal proceedings.¹
That's it, and at the time it was published no one considered it an especially big deal because courts had long deferred to agencies anyway on pragmatic grounds—namely that complex modern rulemaking frequently required deep expertise that judges didn't have. Chevron merely changed the grounds for this deference and made it a little more explicit.
It may be, as some people have argued, that the case at hand in yesterday's decision really was an example of egregious overreach by a federal agency. If it was, however, the Court could easily have ruled against the Commerce Department without touching Chevron. They just had to declare that the department's actions weren't a reasonable interpretation of the law.²
In theory, Chevron is neither conservative nor liberal. It's merely a statement about the level of deference courts should show toward Congress and federal agencies, regardless of which party is in power. Nor, as the Wall Street Journal puts it, should it mean that Biden administration priorities are on "shakier legal footing."
In practice, though, it gives the Supreme Court cover to work its will more overtly if federal agencies are being reasonable but the justices don't like the results anyway. And since the Court looks set to be an activist conservative body for a good long time, that means its will is likely to be activist and conservative regardless of what's reasonable.
¹The last bit (limiting deference to formal proceedings) was added in a later case.
²They do this a lot, which makes it unclear just how much impact the end of Chevron will have. In a sense, all the Court did was codify what they've been doing for the past couple of decades anyway.
This is true. Trump admin could make whatever rules it wanted to, but a Court can override it at its whim.
Not only did it decide to decimate settled law, but then it had the gall to cite stare decisis to claim that prior actions of rule-making of past administrations cannot be undone. This is the peak of hypocrisy of a power grab and one that should concern the other two branches. But Republicans can't see it because they, too, see it as a conservative win when it's not. It's a plain old power grab of the judiciary over the legislative and executive. When the time comes, a liberal-leaning Court will be able to wipe out all conservative rules and they'll be pissed about that. They reap what they sow, motherfuckers.
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“When the time comes, a liberal-leaning Court will be able to wipe out all conservative rules and they'll be pissed about that.”
Assumes something will happen again that hasn’t happened in like half a century. The Court has been conservative my entire life, and I’m almost 50. How exactly is it going to turn more liberal in my lifetime?
The whole point of Chevron was to keep wealthy opponents of regulation from filing lawsuits because they knew that the burden of proof was high.
In effect, the courts are inviting wealthy corporations to challenge every finding by every regulatory agency, because the court will now grant zero deference to the agency.
This is a BFD. Along with the case gutting the authority of administarive law judges, the courts have basically completely hamstrung the ability of the executive to enforce the law. (Poor people, of course, will still have to comply—it’s rich people who will be able to hire teams of lawyers to fight every step of the way).
Exactly. It’s opening the floodgates for lawsuits by the deep-pocketed.
Precisely this. Lower courts now lack permission to dismiss Aileen-Cannon-style lawsuits, which gives corporations an incentive to file them and bog things down in (now overloaded) courts while continuing to do what the regulators said they couldn't. And perhaps just as importantly, it DISincentivizes both regulators and injured parties from making rules or complaining about injuries, because they know they can't match companies' resources.
THIS is the major import of the decision: a giant win for corporations. Sorry about your water and air and food and drugs and workplace and product safety and ...
The Administrative Procedures Act still exists, so rules can not be changed willy nilly.....Maybe this court is looking for a case to upend that too...
Many laws over the years were written with Chevron deference in mind. How else can Congress direct an agency to study a problem, promulgate rules to fix it under given restrictions (e.g. cost benefit analysis), revue and update said rules periodically as new information comes in, and keep moving on...
And now, that's what the Court's will do....
I suspect this ruling will make it easier for moneyed interested to keep the appeals ball rolling until a favorable judge can be found. or at least prevent regulations from being enforced while the eternal appeals process persists.
That's one way to see things. Here's another:
It'll also allow nonprofits working with pro bono lawyers to challenge administrative decisions to create thousands of competing rulings in different districts on the establishment of the smallest, most insignificant nexus.
Every decision to promulgate new, permissive mining rules will be challenged on both sides as much as every restrictive one.
Embrace their chaos and bring the storm to them. They asked for it, so let SCOTUS micromanage the federal government until either Republicans or the Court itself finally sees the light.
😉😏
Agreed that progressive non-profits can use this to their advantage. Unfortunately pro-bono against really big money is not a level playing field.
Perhaps most telling about this case is that the decision's author, Neil Gorsuch, repeatedly used the term "nitrous oxide" (laughing gas) in place of nitrogen oxides which the EPA is trying to regulate. The 6 justices have no clue to the science and they just made that national.
If overturning Chevron isn’t a big deal, why has it been an explicit goal of the Federalist Society for years?
Sounds about right.
I took Administrative Law pre-Chevron. It was probably bubbling up in the lower courts at the time, but it wasn’t on the radar. When it came down a couple of years later, nobody thought it was a big deal.
There were reasons for this. Courts are largely incompetent to parse out highly technical regulatory issues, and Congress can’t write statutes that cover everything that can come up with the level of detail needed to make that possible. Consequently, courts have always deferred to agency interpretations. (Before Chevron, there was something called Skidmore deference, which survives today and is broad and ill-defined enough to do a large percentage of the work that Chevron did.) That deference was somewhat wild-and-wooly and variable. Some judges, like Justice White, were Chevronists avant la lettre. Just how much deference other judges were prepared to show depended on things like the difficulty of the issue, the reputation of the agency (the SEC got more deference than the NLRB), and how big of a stretch from the statutory language the regulation was. Much like the way things were last week. Chevron was widely seen at the time as a modest tidying up of existing judicial practice using a handy, if not very result-driving, formula. In the medium to long run, Loper-Bright will, I predict, change how courts talk more than it will change what courts do. In the short run, some judges will run away with things and micromanage agency decisions largely when they don’t like what the agency does. Then there will be a case that will do to Loper-Bright what Rahimi seems to have done to Bruen and things will settle down.