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 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The Safe Drinking Water Act, Clean Air act, and so on would effectively be repealed.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.