Chevron deference is a vital check on the judicial branch

It’s an unlikely blockbuster case: a dispute over who pays for federal observers of herring fishing boats. But the US Supreme Court’s decision to deal with Loper Bright Enterprises v. Raimondo revealed what could be one of the most consequential decisions in the fall of the 2023 term. At issue is whether courts can substitute their own policy preferences for those of expert agencies when it comes to filling in the details of federal regulatory programs.

In the Loper Bright case, the Supreme Court will consider whether to overrule a four-decade-old decision called Chevron USA v. NRDC. In Chevron, the court formally stated a long-standing principle: If Congress does not provide a clear answer as to how a statute applies to a particular situation and a regulatory agency fills the gap in a reasonable way, judges should defer to the agency’s decision. .

The original Chevron case illustrates the principle. The Clean Air Act requires the US Environmental Protection Agency to regulate emissions from “stationary sources,” but the law does not say whether the “source” is just a smokestack or an entire factory. The Supreme Court ruled that the agency, using its expertise and the authority delegated to it by Congress, must decide what is most reasonable. In this type of situation, the court explained, the court’s role is to defer to the agency’s approach, even if it wants something different.

While Justice Clarence Thomas and the late Justice Antonin Scalia both championed Chevron for years, recently right-wing legal strategists have concluded that ending deference to Chevron is key to their plans. to deconstruct the administrative state. Some members of the court’s current majority, including Thomas, have called for reconsideration of Chevron.

The court limited Chevron in 2022 when it adopted the so-called “major questions doctrine.” That doctrine overturns the rule of deference in cases where an agency takes a highly consequential action that reflects an unannounced expansion of the scope of its authority. In rare and exceptional cases, the court requires a clear statement from Congress authorizing the agency’s action.

The substantial questions doctrine, however, does not apply when agencies decide garden-variety questions about regulatory details that Congress has deliberately left to them. Agencies are constantly making these kinds of decisions, on topics ranging from how to run Social Security and Medicare, to how to solve complex tax codes, to protecting investors and depositors. through securities and banking regulation, to keeping workplaces safe. , to enforce anti-discrimination laws, to regulate the environment and energy, and others.

That’s why Loper Enterprises is so important. The fishing regulation at issue in the case is unclear, it may even be a red herring. The court’s order granting review indicated that it sought to decide whether to overrule or “clearly” Chevron.

The court may even pause to decide the issue. It usually provides a review to decide on a big question, have second thoughts, and then look for a narrower way out. Although the court granted review only to consider the Chevron issue, avoiding that issue may have been the best outcome.

OverrulingChevron will often subject agencies to judicial review and override Congress’s decision to leave the details of regulatory policymaking to expert agencies. Non-expert judges with partisan or ideological biases – especially in the lower courts – substitute their own policy preferences for agencies, hiding the “best reading” of the vague laws.

In recent months, especially since the advent of the big question doctrine, we have repeatedly seen this kind of judicial activism. Judges have moved aggressively to reject policies that disregard longstanding limits on judicial review.

Recent examples include banning safe and otherwise legal abortion, reversing discretionary immigration enforcement protocols, and eliminating student loans. If Chevron is overturned, we can expect judges to act more like policymakers, than neutral umpires.

And as deregulatory disasters — from plane crashes and train derailments to bank collapses — continue to rock the country, Chevron’s overrule will make it harder to prevent these kinds of disasters in the future. . This would limit the agency’s power to exercise the discretion granted by Congress to take timely and effective action.

Many of the labor, health, safety, environmental, consumer, financial, and anti-discrimination protections the right wants to eliminate or block are too popular with voters and too well supported by evidence and legislation to attack directly. It would be easier to reverse the administrative actions that enforce these regulatory protections — and to get the least accountability, there is no elected branch of our government to do so.

Chevron has long served as a deterrent to judges who might be tempted to make policy based on their own preferences. In a system of government based on checks and balances, Chevron is an important check on the judicial branch — and one we must maintain.

Scott Nelson is an attorney at Public Citizen.