Supreme Court could end “Chevron Deference” rule that keeps federal regulatory agencies running.

by Larry Pareles, Indivisible Northampton-Swing Left Western Mass.

I’m concerned about a new potential threat to our government: The U.S. Supreme Court, with its right-wing majority, is considering — and might overturn — the 1984 “Chevron deference” doctrine. This legal principle lets federal agencies interpret laws passed by Congress and expects the courts to defer to the expertise of the agencies that make the detailed rules needed to implement those laws. This means that federal courts don’t try to interpret or change agency rules — and people can’t just challenge rules that they don’t like in court.

If the Supreme Court overturns this rule, which has worked well for 40 years, it could destroy the regulatory system that ensures competent oversight of business and protection of American citizens. Under Chevron deference, federal agencies use their expertise to clarify unclear areas within laws and ensure smooth implementation. For example, when Congress passes a law to make school tap water safe from lead, agency experts create clear, detailed regulations to describe exactly what that means.

Corporations say these rules pose burdensome requirements that limit their profits, but they have record profits already. Changing this policy would put important federal protections at risk for things that affect everyone in America — like clean air and water, pure food and drugs, transportation safety, climate change rules, healthcare, and more. 

Corporate shills seek to disempower those pesky experts.

The Chevron ruling was implemented by conservative justices in the Reagan years — including former Supreme Court Justice Antonin Scalia, who saw it as a check on liberal legislative activism. It enabled conservatives in the executive branch agencies to implement regulatory laws according to their own political agendas. 

In the following decades, however, conservatives have strongly opposed the growth of regulatory protections imposed on business. Accordingly, the Chevron deference doctrine has increasingly become a target for right-wing members of Congress. This includes Senator Ted Cruz (R-TX) and 34 members of the U.S. House of Representatives, who have signed a brief to the Supreme Court arguing that the Court should overturn the rule. These efforts are backed by industrialists such as the Koch brothers’ network, petroleum and chemical companies, vape pen manufacturers, and the meat, poultry, and fishing industries. 

Several sitting members of the Court have issued rulings or spoken in related cases with a negative attitude toward the rule — including Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh. Kavanaugh has stated that the doctrine caused “shocks to the system every four or eight years when a new administration comes in.” 

What was the landmark case, “Chevron USA Inc. v. Natural Resources Defense Council Inc.”?

It was a 1984 Supreme Court challenge by Chevron to clean air regulations promulgated by the U.S. Environmental Protection Agency. The Court ruled that courts must defer to agency regulations in cases where: 1) the law has spoken specifically to the issue at hand and 2) the regulation laid down by the agency “is based on a permissible construction of the statute.” Since laws cannot take into account all possible conditions under which they may be enforced, agencies are necessarily permitted to address gaps and ambiguities using their expertise. The Chevron deference principle is said to be the most frequently cited ruling in U.S. administrative law and has been referenced in thousands of cases.

“Judges should know what they don’t know.”

Justice Elena Kagan argued that this is exactly what the doctrine is intended to do, since the administrations who appoint the agency heads are elected by the people and thus are exercising the will of the people, unlike the unelected Court justices. Further, many of these cases are very complex and require experts with years of specialized experience that neither the courts, nor Congressional lawmakers, have. Kagan noted that “…judges should know what they don’t know.” She continued saying that ceasing to defer to federal agency rulemaking will result in widespread confusion, since state-level rulemaking will result in 50 different sets of regulations across the nation.

The Chevron deference doctrine makes rules predictable, helping businesses and citizens work with federal agencies and their regulations in an orderly and legal manner. Disrupting this would result in chaos, numerous lawsuits, and blockage of critical regulatory processes. It would put difficult technical decisions in the hands of judges instead of experts in various fields. One commentator said he was afraid of a world where a court could tell a scientist that a particular nuclear safety regulation was not needed. 

Additionally, Chevron deference allows agencies to change rules when circumstances require, which is vital for addressing complex issues quickly. Without it, a gridlocked Congress would have a hard time quickly passing laws with rules that are detailed and precise, giving even more power to those seeking to end all government oversight.

The dismantling of Chevron deference could enable corporations, the rich, and MAGA Republicans to challenge any federal rules that they don’t like in the courts. I believe that if the Supreme Court changes or eliminates Chevron deference, this could threaten the stability and effectiveness of many of our legal and regulatory systems. It’s really important to protect these systems for the good of America. I hope that many readers will contact their Representatives and Senators to voice their concerns about this issue. I know I will.