Separation of powers is a core concept of America’s Constitution. In the Founders’ scheme, Congress, the courts, and the executive are independent branches of government, with their own roles and duties, intended to check one another.
But since 1984, the Supreme Court has hamstrung its own ability to act independently in the face of executive power. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the high court adopted a blanket presumption of deference to statutory interpretations put forth by regulatory agencies in any case where the statute was ambiguous, so long as the interpretation was reasonable.
If there is ambiguity about what the text of a law says, the Supreme Court decided in that case, then the courts should defer to the government’s experts. This became known as the Chevron deference.
In practice, the Chevron deference undermined the Court’s independence, since it forced courts to just accept executive branch interpretations in many tough cases.
The doctrine also creates perverse incentives for the other two branches. For example, by giving deference to agencies in ambiguous cases, it gave executive branch regulators incentive to hunt for ambiguities in order to expand their own power. This led to decades of executive overreach, as administrations used convoluted readings of statutes to pursue agendas Congress never imagined.
By the same token, Chevron deference shifted the burden of making well-written and fully thought-out laws away from Congress. Empowering regulators meant that, at the margins, Congress had less reason to write clear, consensus-based legislation.
The result, over 40 years, has been a shift away from the intended constitutional order, in which Congress writes laws, the executive branch implements them, and the courts rule independently on matters of dispute. We now live under an often dysfunctional system in which Congress is less inclined to compromise and legislate on tough issues, regulators are more inclined to take matters into their own hands, and courts have less power to tell executive branch officials when they have overreached.
The system lends itself to politicized regulatory pingponging, as courts are generally required to defer to the differing and even dramatically opposed interpretations put forth by shifting Democratic and Republican administrations.
This was what was at stake in January, when the Supreme Court heard oral arguments that put the legacy of Chevron on trial. In Loper Bright Enterprises v. Raimondo, a group of herring fishermen from New Jersey objected to a federal rule requiring them not only to host government monitors on their boats but to pay the cost of those monitors—about $700 a day.
That requirement was based on the 2007 Magnuson-Stevens Act (MSA), which does require some types of fishing operations to host and pay for government monitors. But the fishermen in this case weren’t explicitly covered by that requirement, so when the National Oceanic and Atmospheric Administration (NOAA) decided to expand the purview of the MSA in order to cover a budget shortfall, the fishermen went to court.
The fishermen’s cause is important on its own merits. But for larger constitutional purposes, it’s something of a red herring. The specifics of their complaint are less important than whether or not the courts had to defer to NOAA’s newly stretched interpretation of the MSA.
In oral arguments, the three justices appointed by Democrats seemed inclined to keep Chevron as is, with all three suggesting that experts in regulatory agencies are better equipped than courts are to make tough decisions about difficult-to-parse statutes.
But the rest of the Court seemed skeptical. Justice Neil Gorsuch noted that Chevron deference tends to empower agencies at the expense of less-powerful individuals, such as immigrants, veterans, and Social Security claimants. Addressing the Court, Paul Clement, who defended the fishermen, put it this way: “One of the many problems with the Chevron rule is it basically says that when the statutory question is close, the tie goes to the government.”
Outside the Court, news reports and activists warned of the consequences of taking down Chevron, noting that much of the federal government’s vast regulatory authority rested on its rule of deference. As a USA Today report on the case noted, “The court’s decision could undo decades of rules and procedures involving land use, the stock market, and on-the-job safety.”
Loper Bright was not the only Supreme Court case to challenge major parts of the government’s regulatory authority this term. Sheetz v. County of El Dorado takes aim at regulatory takings, and Securities and Exchange Commission v. Jarkesy revolves around the question of whether the government violates the Seventh Amendment’s requirements about jury trials when judging securities claims. Collectively, wrote Cameron Bonnell in The Georgetown Environmental Law Review, these cases “indicate the Court’s eagerness to continue shaping the proper scope of government regulatory authority.”
For too long, the administrative state has run unchecked over much of American life. That might finally be coming to an end with this year’s Supreme Court term. In discussing the problems with Chevron with NPR, Clement said, “I think it’s really as simple as this, which is: When the statute is ambiguous, and the tie has to go to someone, we think the tie should go to the citizen and not the government.” One can hope.
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