It’s an unlikely blockbuster case: a dispute over who pays for federal observers on herring fishing boats. But the U.S. Supreme Court’s decision to take on Loper Bright Enterprises v. Raimondo tees up what may be one of the most consequential decisions of the fall 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 U.S.A. v. NRDC. In Chevron, the court formally stated a principle it had long applied: When Congress does not provide a clear answer about how a law applies to a particular situation and a regulatory agency fills that gap in a reasonable way, judges must defer to the agency’s decision.
The original Chevron case illustrates the principle. The Clean Air Act required the U.S. Environmental Protection Agency to regulate emissions from “stationary sources,” but the law didn’t say whether a “source” was just one smokestack or a whole factory. The Supreme Court ruled that the agency, exercising its expertise and the authority delegated to it by Congress, got to decide what makes the most sense. In this type of situation, the court explained, a court’s role is to defer to the agency’s approach, even if it prefers a different one.
While Justice Clarence Thomas andthe late Justice Antonin Scalia both championedChevron for many years, more recently legal strategists on the right have concluded that ending Chevron deference is key to their plans to deconstruct the administrative state. Some members of the court’s current majority, including Thomas, have called for reconsidering Chevron.
The court significantly limited Chevron in 2022 when it adopted the so-called “major questions doctrine.” That doctrine reverses the rule of deference in cases when an agency takes a highly consequential action reflecting a previously unheralded expansion in the scope of its authority. In those very rare and exceptional cases, the court demands a clear statement from Congress authorizing the agency’s action.
The major questions doctrine, however, doesn’t apply when agencies decide garden-variety questions about regulatory details that Congress deliberately left to them. Agencies make those kinds of decisions constantly, on subjects ranging from how to run Social Security and Medicare, to how to work out the mind-numbing complexities of the tax code, to protecting investors and depositors through securities and banking regulation, to keeping workplaces safe, to enforcing anti-discrimination laws, to environmental and energy regulation, and more.
That’s why Loper Enterprises is so important. The fisheries regulation at issue in the case is obscure, arguably even a red herring. The court’s order granting review indicates that it intends to decide whether to overrule or “clarify” Chevron.
The court could still stop short of deciding the issue. Often it grants review to decide a big question, has second thoughts, and then looks for a narrower way out. Although the court granted review solely to consider the Chevron issue, dodging that issue would probably be the optimal outcome.
OverrulingChevron would routinely subject agencies to judicial second-guessing and negate Congress’ decision to leave the details of regulatory policymaking to expert agencies. Inexpert judges with partisan or ideological biases — especially on lower courts — would substitute their own policy preferences for those of the agencies, in the guise of the “best reading” of ambiguous laws.
In recent months, especially since the advent of the major questions doctrine, we’ve repeatedly seen that kind of judicial activism. Judges have acted aggressively to throw out policies with no regard for longstanding limits on judicial review.
Recent examples include banning safe and otherwise legal abortion medication, overturning discretionary immigration enforcement protocols, and striking down student debt relief. If Chevron falls, we can expect judges to act more and more like policymakers, rather than neutral umpires.
And while deregulatory disasters — from airline meltdowns and train derailments to bank collapses — continue to rock the nation, overruling Chevron would make it much harder to prevent these kinds of catastrophes in the future. It would limit agency power to exercise the discretion conferred by Congress to take timely and effective action.
Many of the worker, health, safety, environmental, consumer, financial, and anti-discrimination safeguards the right wants to eliminate or block are too popular with voters and too well-supported by evidence and law to attack directly. It’s far easier to overturn the administrative actions that implement these regulatory protections — and to get the least accountable, unelected branch of our government to do it.
Chevron has long served as a restraint on 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 a vital check on the judicial branch — and one we should keep.
Scott Nelson is an attorney with Public Citizen.