A revolution has quietly transformed the U.S. government for the past four decades. The Supreme Court that sits today has the opportunity to overturn key precedents that catalyzed this upheaval, marking a potential shift in the court’s approach that could reverberate through policies and politics at all levels.
With weighty issues around abortion, gun rights, and other hot-button topics on the docket, Americans could witness the court unwind case law that has stirred controversy since the Reagan era. The coming term may prove pivotal in whether this “constitutional revolution” endures or if the nation’s highest bench charts a new constitutional course.
Background on the Chevron Doctrine
The Chevron doctrine stems from a 1984 Supreme Court case, Chevron v. Natural Resources Defense Council. In this case, the court established a two-step test for determining whether to defer to a federal agency’s interpretation of an ambiguous statute that it administers.
First, the court considers whether the statute’s meaning is truly ambiguous. If the statute is unambiguous, then the court applies its interpretation. However, if the statute is ambiguous or silent on a particular issue, the court proceeds to step two. At step two, the court defers to the federal agency’s interpretation as long as it is reasonable.
Conservative Justices Question the Chevron Doctrine
The Supreme Court’s conservative justices expressed skepticism about the legal doctrine established in Chevron v. Natural Resources Defense Council during oral arguments on November 7, 2022. Justice Brett Kavanaugh argued that Chevron’s deference leads to “shocks to the system” when a new presidential administration takes power and makes significant regulatory changes.
Justice Neil Gorsuch raised concerns about how Chevron negatively impacts less powerful groups like immigrants and veterans rather than large corporations. Justice Samuel Alito questioned when a statute would be considered ambiguous enough to trigger Chevron’s deference in the first place.
Chevron Deference: A “Bloodless Constitutional Revolution“
The Chevron doctrine has significantly expanded the power of federal agencies over the past four decades. As Chief Justice John Roberts stated, “We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.”
This deference to agencies on matters of statutory interpretation has enabled the administrative state to grow unchecked. Justice Neil Gorsuch referred to the “explosive growth of the administrative state since 1970,” arguing that executive agencies should not use regulations to bypass the legislative process.
The Cases on The Dock
The two cases before the Supreme Court, Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce exemplify agencies exploiting statutory silence to claim powers not expressly granted by Congress. The issue is whether the National Marine Fisheries Service can require small fishing boats to not only carry monitors to enforce regulations but also to pay the monitors high salaries.
While the Magnuson-Stevens Act allowed the agency to place monitors on boats, it did not authorize charging the boats for monitoring costs. Nevertheless, the lower courts ruled that the agencies could impose these costs based on statutory silence and Chevron deference.
Calls to Overturn Chevron Mount on the Supreme Court
For 40 years, the Supreme Court has upheld the Chevron deference, originating from the 1984 case Chevron U.S.A. v. NRDC. This doctrine gives federal agencies broad authority to interpret ambiguous statutes rather than leave that power to the courts.
However, several conservative justices have recently expressed doubts about Chevron, arguing that it unconstitutionally transfers legislative authority from Congress to the executive branch.
Autonomy or Control?
The court has asked litigants whether Chevron should be overturned or at least clarified to not apply when agencies claim powers only vaguely supported by statute. Justice Neil Gorsuch asserted that Chevron allows agencies to bypass Congress with “pen-and-phone regulations.” Justice Clarence Thomas wrote that Chevron “precludes judges from exercising [independent] judgment.”
Chief Justice John Roberts cited a precedent that “Congress intends to make major policy decisions itself, not leave those decisions to agencies. If the court overrules or limits Chevron, it would significantly reduce federal agencies’ ability to create major policies without explicit Congressional approval.
Liberal Justices Defend Chevron Deference to Agencies
The Supreme Court’s liberal justices defended the Chevron doctrine during oral arguments, arguing that federal agencies have the necessary expertise to reasonably interpret ambiguous statutes. Justice Elena Kagan suggested that agencies are better positioned than courts to make judgments in complex, technical areas.
Similarly, Justice Sonia Sotomayor doubted whether there could be a singular “best” interpretation of an unclear law, observing that the Justices “routinely disagree” over statutory meaning. Justice Ketanji Brown Jackson also contended that Chevron empowers agencies to make essential policy choices, such as defining vague terms.
What’s at Stake for the Administrative State
The Chevron deference stems from a 1984 Supreme Court case that established a doctrine requiring courts to defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Overturning or limiting Chevron could diminish the power of agencies like the EPA, FDA, and others to craft wide-ranging policies without explicit Congressional approval.
Supporters argue such deference is proper and necessary for agencies’ technical expertise in complex areas. Critics’ counter expertise does not supersede constitutional checks and balances. The two cases under review concern fishing companies challenging a requirement to pay regulators’ salaries under a fisheries management law silent on such payments.
Policymakers on Chokehold with Supreme Court Proving Flexible
The Supreme Court’s apparent willingness to overturn major precedents that have shaped policymaking over the past four decades signals a pivotal moment in the court’s history. A conservative supermajority now has the votes to unwind case law that has dramatically expanded federal power and recognized rights not explicitly written into the Constitution.
Supporters applaud this course correction as properly realigning the nation’s governance with the Framers’ intent. Detractors argue it strips away hard-won progress secured through the democratic process.
Whichever view ultimately prevails, the court’s rightward shift seems destined to substantially impact the country for generations to come by either restoring or upending the judicial philosophy that has prevailed since the Reagan era.
Potential Impacts if Chevron Is Overturned
The Supreme Court appears poised to overturn or significantly limit the Chevron doctrine, which has guided judicial review of federal agency statutory interpretations for nearly 40 years. Federal agencies may have less flexibility in interpreting ambiguous statutes as they craft policies and regulations.
There would likely be increased litigation around agency statutory interpretations. Regulated entities may more frequently challenge agency rules or guidance in court if they believe judges, rather than agencies, will have the final say on statutory ambiguities.
More Work Passed Down to Congress and Policymakers
Congress may have to draft legislation with more precision and foresight to avoid ambiguities. If agencies lose interpretative deference, Congress cannot rely as heavily on agencies to work out the specifics of broadly worded statutes. More detailed bills could be harder to enact.
The ruling could impact various policy areas – environmental regulations, immigration policies, veterans’ benefits, and more. Groups that feel disadvantaged by agency interpretations may see new openings to challenge those decisions in court. However, overturning precedent can also create uncertainty.
Modification is Better Than Overturning Chevron
The Supreme Court has several alternatives to completely discarding the Chevron doctrine. Rather than overrule Chevron entirely, the court could modify its existing framework.
For example, the court could limit Chevron’s deference to certain subject areas or require a heightened showing from agencies to receive deference. This more moderate approach may allow Chevron to continue serving its purpose of bringing agency expertise to complex areas while also restricting its scope.
Replacement of Chevron with a Less Deferential Standard
The court could adopt a less deferential standard, requiring agencies to show the statute clearly supports their interpretation rather than showing merely a reasonable interpretation. While still granting agencies interpretive authority, this would give courts more power to override agency statutory interpretations.
Rather than making an all-or-nothing choice on Chevron’s fate, the replacement of Chevron with less deferential standards would allow the court to balance competing considerations by curtailing Chevron’s deference while preserving its core purpose.
Applying Chevron Sparingly
The court could apply Chevron less frequently without formally modifying or overruling it. As noted during oral arguments, the court has relied less on Chevron recently. Continuing this trend would diminish Chevron’s impact while avoiding an abrupt doctrinal shift overruling it after nearly 40 years.
The court has modified doctrines similarly in the past, avoiding sudden disruptions to settled areas of law. Such an approach may better serve the legal system here as well.
A Shift in Administrative Law
The Supreme Court appears poised to overturn the longstanding Chevron deference doctrine in the near future. This would represent a major shift in administrative law, with significant implications for the balance of power between the judiciary, executive branch agencies, and Congress.
The court’s conservative majority seems skeptical of the legal foundations of Chevron’s deference and is concerned about an overly expansive administrative state. While the practical effects may develop gradually, the days of courts automatically deferring to reasonable agency interpretations of ambiguous statutes seem numbered.
