Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
“Nearly 40 years ago, in Chevron v. Natural Resources Defense Council, the Supreme Court ruled that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. On Monday, the Supreme Court agreed to reconsider its ruling in Chevron. The question comes to the court in a case brought by a group of commercial fishing companies. They challenged a rule issued by the National Marine Fisheries Service that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans…
“Relying on Chevron, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected the companies’ challenge to the rule. Judge Judith Rogers explained that although federal fishery law makes clear that the government can require fishing boats to carry monitors, it does not specifically address who must pay for the monitors. Because the NMFS’s interpretation of federal fishery law as authorizing industry-funded monitors was a reasonable one, Rogers concluded, the court should defer to that interpretation…
“The fishing companies came to the Supreme Court in November, asking the justices both to weigh in on their challenge to the rule and to overrule Chevron (or, the petition suggested, clarify that when a law does not address ‘controversial powers expressly but narrowly granted elsewhere in the statute,’ there is no ambiguity in the statute, and therefore no deference is required).” SCOTUSblog
The left urges the Court to uphold current precedent, arguing that experts in administrative agencies are better qualified to determine specific regulations.
“Congress in enacting a law can rarely if ever predict every situation that might arise in applying or enforcing it. So, it must leave details for expert administrators to fill in. Think about how the Environmental Protection Agency, created in 1970, has developed rules to combat the causes and harms of climate change, which were understood poorly if at all until decades later. Or how the Occupational Safety and Health Administration must adapt and develop rules to protect workers in industries that did not even exist at its birth in 1970…
“[Without the Chevron doctrine] whole industries would be unleashed to operate free from mandates that protect clean air and water; banks and predatory lenders could operate unconstrained by requirements that protect consumers; the wealthy and powerful would make their own rules…
“The Chevron deference doctrine has worked tolerably well for four decades, and the case for changing it hasn’t been made. If the conservative justices choose to abandon the doctrine just because they have the votes, they will reinforce the message from Dobbs vs. Jackson Women’s Health Organization, the court’s abortion decision last year, that our reliance on precedent is out the window when it comes to the conservative majority’s agenda.”
Laurence H. Tribe and Dennis Aftergut, Los Angeles Times
“Chevron has largely prevented lower court judges from micromanaging the sort of routine, and often highly technical, regulatory decisions that the government makes all the time — questions like how much nitrogen may be discharged by a wastewater treatment plant, or how to conduct hearings that determine which coal mine workers are entitled to certain disability benefits…
“Without Chevron, every one of these complicated questions could become the subject of protracted litigation, presided over by judges who know little or nothing about nitrogen pollution, black lung disease, or any of the myriad other areas where specialized agencies have considerable expertise…
“Worse, regulated industries are likely to shop around for friendly judges who may have an axe to grind against the current administration. And, in a world without Chevron, even longstanding regulations could be the subject of litigation. No one will know what the rules are until judges with no expertise on the relevant subject matter weigh in. That is an inefficient way to run a government, and it is a bad way to run a country. Federal policy should be set by people who know what they are talking about.”
Ian Millhiser, Vox
The right urges the Court to limit deference to administrative agencies, arguing that lawmaking responsibility belongs to Congress.
The right urges the Court to limit deference to administrative agencies, arguing that lawmaking responsibility belongs to Congress.
In the fishermen’s case, “The D.C. Circuit Court of Appeals upheld the government’s broad interpretation as ‘reasonable’ because it was not expressly precluded by the law. In other words, as long as a law doesn’t forbid the government from doing something, it can do it…
“Where have we seen this before? The Biden vaccine mandate and eviction moratorium were particularly egregious examples. The High Court resolved challenges to those policies under its major questions doctrine, which requires clear authorization from Congress for regulations that are politically or economically significant. The Court is taking the next logical step by agreeing to revisit its much-abused Chevron precedent.”
Editorial Board, Wall Street Journal
“Politico says liberal activists love Chevron because in hundreds of court decisions it has been invoked to hand agency experts the power ‘to respond to problems that Congress might not anticipate or fully understand.’ That may be expedient, but it is a dangerous trampling of our constitutional framework…
“Since the spectacular collapse of President Barack Obama’s cap-and-trade scheme to rein in carbon emissions, which failed to even get a Senate floor vote in 2010, environmentalists have become experts at twisting and distorting old laws to accomplish by the back door what they could never do using legitimate constitutional approaches. From regulations aimed at climate change to the overriding of local zoning laws in New York, activists have used that approach to lobby federal agencies to implement an agenda Congress would never approve on its own.”
John Fund, New York Post
“Who makes the law in America? If you answered ‘Congress,’ you’d be partly right. Congress makes part of the law in America, but only a very small part. And who interprets the law in America? Again, if you answered ‘the courts,’ you’d only be partly right. Vastly more law is made and interpreted by the hundreds of federal agencies and subagencies—nobody knows exactly how many there are—that make up our leviathan administrative state…
“The drift away from representative self-government and toward administrative rule has steadily increased over the past hundred years, but it accelerated after the Supreme Court’s 1984 decision… We can’t say for sure what precise effect the fishermen’s case will have on the administrative state. But it seems likely that both Congress and the courts will play a little bit bigger role in making and interpreting law, respectively, than they do now, and that’s a good thing.”
GianCarlo Canaparo and Jack Fitzhenry, Daily Signal
A libertarian's take
“While I would be happy to see Chevron overturned, I am skeptical of claims it will make a huge difference to the future of federal regulation… 1) we often forget that the US had a large and powerful federal administrative state even before Chevron was decided in 1984, 2) states that have abolished Chevron-like judicial deference to administrative agencies (or never had it in the first place) don't seem to have significantly weaker executive agencies or significantly lower levels of regulation, as a result…
“3) a great deal of informal judicial deference to agencies is likely to continue, even in the absence of Chevron, and 4) Chevron sometimes protects deregulatory policies as well as those that increase regulation (it also sometimes protects various right-wing policies that increase regulation, in an age where pro-regulation ‘national conservatives’ are increasingly influential on the right); the Chevron decision itself protected a relatively deregulatory environmental policy by the Reagan administration.”
Ilya Somin, Volokh Conspiracy
