Four justices appeared absolutely determined, on Wednesday, to overrule one of the most consequential Supreme Court decisions in the Court’s entire history.
Chevron v. National Resources Defense Council (1984) is arguably as important to the development of federal administrative law — an often technical area of the law, but one that touches on literally every single aspect of American life — as Brown v. Board of Education (1954) was important to the development of the law of racial equality. Chevron is a foundational decision, which places strict limits on unelected federal judges’ ability to make policy decisions for the entire nation.
As Justice Ketanji Brown Jackson said during Wednesday’s arguments, Chevron forces judges to grapple with a very basic question: “When does the court decide that this is not my call?”
And yet, four members of the Supreme Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — spent much of Wednesday’s arguments in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce speaking of Chevron with the same contempt most judges reserve for cases like Plessy v. Ferguson (1896), the pro-segregation decision rejected by Brown.
The open question is whether the Court’s four most strident opponents of this foundational ruling can find a fifth vote.
None of the Court’s three Democratic appointees were open to the massive transfer of power to federal judges contemplated by the plaintiffs in these two cases. That leaves Chief Justice John Roberts and Justice Amy Coney Barrett as the two votes that remain uncertain. To prevail — and to keep Chevron alive — the Justice Department needed its arguments to persuade both Roberts and Barrett to stay their hands.
Chevron Deference basically says that the actions of a federal agency cannot be questioned by anyone outside that agency; that the agency is accountable only to itself.
Regulatory capture is a major problem throughout government. Chevron Deference enables regulatory capture by denying judicial review of an agency’s enforcement priorities.
Edit 1: Chevron Deference effectively prohibited judicial review of the FCC’s deeply unpopular decision to suspend Net Neutrality in 2017.
Edit 2: Chevron Deference effectively prohibits judicial review of NHTSA CAFE standards, which are incentivizing manufacturers to radically increase vehicle sizes, thus increasing total emissions.
Chevron deference means that federal agencies (FDA, SEC, OSHA, etc) can regulate their respective areas without Congress needing to pass a law for each regulation.
This is important because Congress moves incredibly slowly, and there are far far too many specific instances that would need to be legislated - there is literally not enough time spent in session.
Overturning Chevron would make things like lead in gasoline legal once again - it was only ‘banned’ by an EPA rule, congress also didn’t specify what actions to take in the Asbestos Hazard Emergency Respond Act.
The Safe Drinking Water Act, Clean Air act, and so on would effectively be repealed. These were acts of Congress, but the text of these laws does not spell our allowed levels of various pollutants and punishments for exceeding them, so it would be toothless.
In short, it would be an absolute disaster. Even if you think there are too many regulations, eliminating all of them, across nearly all facets of life, overnight is the worst way to go about this imaginable.
I agree completely: the agencies do need to be able to enact specific policies without having to petition Congress to enact them.
The problem isn’t that the courts are deferring to the agencies. The problem is the degree of deference. I have no problem with presuming agency policies are valid, provided a plaintiff is afforded the opportunity to rebut that presumption in court.
Yes, Chevron deference made it easier for the EPA to take action against polluters. Chevron Deference also made it effectively impossible for net neutrality proponents to challenge Ajit Pai’s FCC.
Okay, but isn’t the current setup such that deference is only a concern for issues that have already passed through formal law?
I’m not sure I understand your question, but I am going to say “No”. Deference only applies where the law is not specific.
But it only applies to to laws. Unless I misunderstand what you mean by “policies”, it shouldn’t apply there. Since it sounds like you’re worried about overreach due to application of chevron deference, I was trying to see if I followed your train of thought correctly.
In my extremely limited understanding, the issue with the RIFO and Chevron Deference is that the gap is so damned wide with regards to how to regulate the internet that there needs to be a better test than “does the solution proposed in the RIFO fill the gap?” I would consider the RIFO to be such an outlier in cases of chevron deference law that it almost looks like a strawman when compared to other uses of chevron deference. We should definitely shore something up to allow future questioning of the wisdom of courses of action recommended by agencies when consulted in deference matters once the consequences of such deference have come to fruition, but that very possibility (as I understand it) is part of WHY the deference to agencies occurs instead of simply allowing judges to decide. The people at the agencies, being theoretically put in power for a set term, have more to lose from bad decision-making than judges-for-life do.
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I initially didn’t adequately demonstrate my concerns, and differentiate them from those coming from Republicans. People assumed I was a shill.
I’ve added a couple examples to better demonstrate how Chevron overreaches.
I don’t know that this court is the best one to overturn Chevron, but I know it needs to be overturned and replaced with something a little more reasonable.
Wickard v. Filburn also needs a similar degree of correction.
That is not what it says AT ALL.
The very first step is a look at rather or not the agency’s interpretation fits the construction of the statute. Then, the regulation can only be enforced if the agency’s interpretation is reasonable and not arbitrary.
Your interpretation would put policy making in the hands of the courts. You claim that it is what prevented net neutrality from remaining law, but what stops a court from claiming there is no authority to regulate net neutrality at all? What makes you think that a judge would rule against CAFE standards as now enforced? You do realize how packed the judiciary is with right wing judges?
No. What you are describing is how deference should work, not how it actually works. If it worked the way you say it does, I would have no problem with it. We are essentially in agreement on what should be happening.
Chevron deference is a two-step test. The first step is whether the statute explicitly authorizes the agency’s actions. If not, the second step asks whether the agency’s policy could conceivably arise from the statute.
The “reasonable” and “not arbitrary” questions you’re talking about only arise after those two steps have been taken. Chevron Deference says that the agency - not the court - is solely responsible for answering those questions.
With net neutrality, the courts ask whether Congress explicitly intended to suspend Net Neutrality, and concludes they did not explicitly require it. They next ask whether suspending net neutrality is a power conveyed to the FCC by statute. Indeed, the FCC should and does have that power. The plaintiff then wishes the court to ask whether the suspension of net neutrality is fair, reasonably, appropriate, not arbitrary, necessary and proper, etc. But, the court points to Chevron Deference and tells the plaintiff that only the agency can answer such questions.
Whether we agree that this is a fair and accurate summary of Chevron Deference, we can agree that the system I just described is not appropriate, while the system you described is appropriate. The fundamental difference between the two systems is whether the courts should or should not be empowered to judge the “reasonableness” of the agency’s interpretation.
The agencies are packed with right wing directors and executives every time we have a GOP president.
While the courts are packed with right-wing judges, plaintiffs in major cases largely avoid them by “shopping” for the judges they want: they can raise their questions in courts known to be friendly to their positions.
You are not correct.
https://www.law.cornell.edu/wex/chevron_deference
Yes. The the right wing courts will uphold their interpretations and block liberal interpretations, so what will be left is only the conservative interpretation regardless of the president.
Everything except your first sentence is accurate. But if that is your rebuttal, you have failed to understand my argument. I’ll try to restate it for clarity.
The test is whether the statute reasonably conveys the power to the agency. Did Congress mean to convey that power to the agency? Did Congress intend for the FCC to have the power to suspend Net Neutrality? Did Congress intend for the NHTSA to have the ability to enact CAFE standards? Did Congress intend for the Bureau of Land Management to have the ability to slaughter entire herds of cattle?
Well, yes, they did. Should certain specific circumstances arise, any of these may become
reasonable“necessary and proper” reactions to those circumstances.Chevron Deference is the idea that once the courts recognize that the agency is “reasonably” empowered to act, the court may not question whether their specific actions are “necessary and proper”. The court can only question whether the agency has the power to act; it cannot question whether that action is appropriate for the circumstances. Only the agency itself is allowed to question whether the action is “necessary and proper.”
So when corrupt FCC commissioners decide to improperly exercise the powers granted to them by Congress, Chevron Deference suspends the constitutional remedy: we cannot petition the court for redress of this grievance.
I still don’t think you get what Chevron Deference does, but whatever. I DO NOT WANT the federal judiciary to decide what is necessary and proper. Those are policy questions for the elected administration and congress, not unelected judges.
Your questions make no sense. Did congress intend for the FCC to suspend Net Neutrality isn’t the question, because congress never directly imposed Net Neutrality. FCC rules on Net Neutrality derived from classifying ISPs as common carriers under Title II of the 1934(!) Communications Act. The question that would go to the courts is did that 90 year old law intend to regulate the internet to begin with? Plenty of conservatives will say no.
You seem to be under the impression that laws have no ambiguity and that congress’s intentions are clear. They are not. The original case we get Chevron Deference was with regard to the Clean Air Act talking about “stationary sources” of pollution, a term not defined in the law. The EPA originally interpreted that as each source at a particular plant, requiring new licenses for every addition. The Reagan EPA changed the interpretation to a stationary source as a whole plant, and thus allowed expansion without new permits if emissions would not increase. Both frankly are reasonable interpretations. So the case ruled they should defer to the agency rather than tackle a policy question.
You may think we have facts on out side, but all the judges appointed by W Bush and Trump, of which there are legion, will not side with facts, they will bend the ambiguity to stop any liberal policy they disagree with.
Your understanding of my question is faulty. I did not ask if Congress intended for the FCC to suspend net neutrality. I asked if Congress intended for the FCC to have the power to suspend net neutrality. The answer is yes, that power is well within the FCC’s charter.
Your position here directly contradicts virtually all of Article III, and effectively strips the people of their power to petition for redress of grievances. Your position is constitutionally invalid. Constitutionally, the court’s power to make this determination is a vital check on the other two branches. Your unhappiness with the current composition of the courts is not a sufficient justification for suspending this check.
The answer is not unambiguously yes! Again, net neutrality is based on a law decades older than the internet. It would be trivial for a judge to say the FCC doesn’t even have the power to enforce Net Neutrality at all!
And it does not override Article III. Again, all regulations have to reasonably follow the law. That is the line for the courts, are they following the law or not. Going beyond that, answering policy questions, contradicts Articles I and II.
You are far too confident judges will rule in your favor.
Whether they rule in my favor or not is irrelevant to the issue. They may very well rule against me. The relevant factor is that a separate entity should be empowered to review the decisions of the agency; the agency should not be judging themselves. That is how the Constitution was set up. Chevron weakens that standard.
When environmental groups sue the NHTSA for their ridiculously weak and counter-productive CAFE standards, they courts should be allowed to say: “Your CAFE standards are supposed to be reducing total vehicle emissions. Instead, they are driving manufacturers to stop producing smaller, more fuel efficient vehicles, and shift toward larger, less fuel-efficient vehicles that can more easily comply. Your standards are driving an increase in total emissions, and are having an effect opposite to that of your agency’s mandate. You have 90 days to either develop new standards to be enacted one year from the date of this letter, or have Congress ratify your current standards as law. Do your job, or I will have Plaintiff do it for you.”