Freedom

Story by Gabrielle Canon

The US supreme court is poised to decide the fate of a decades-old legal framework that has helped determine how the federal government regulates everything from pollution to financial markets.

With cases on abortion, homelessness and Donald Trump grabbing the spotlight, the so-called Chevron deference doctrine has flown somewhat under the radar. But it could be among the court’s most influential decisions this year, upending the way Congress legislates, how bureaucrats carry out presidential directives and how courts rule when conflicts arise over the regulatory process.

Named for a landmark 1984 case, the ruling upheld federal agencies’ authority to interpret laws when they are unclear. Defenders of the doctrine argue that it places important and complicated decisions in the hands of qualified agency experts, instead of potentially politicized regional courts and judges.

But in recent years, it has become the focus of ire on the political right, who see it as evidence of federal government overreach. The conservative-dominated court seems poised to strike down or limit the once-championed convention, with Justice Neil Gorsuch – joined by Justices Brett Kavanaugh, Clarence Thomas and Samuel Alito as outspoken detractors – writing in a 2022 dissent that “the whole project deserves a tombstone no one can miss”.

Now, the court has a chance to give it one. Here’s what you need to know:

What is the Chevron Doctrine and why is it being questioned?

The hierarchy of the US government is clear: Congress writes the laws, the executive branch executes the laws and the judiciary reviews whether they are interpreted correctly.

For the last four decades, the Chevron doctrine provided a simple test with two distinct questions for judges to evaluate whether the agencies under the executive branch are rightly going about things the way Congress intended:

1. Is a statute ambiguous?
2. Is the agency’s interpretation reasonable?

If both answers are yes, under the deference doctrine judges are to side with agencies when disputes arise.

The ruling clarified how the courts were already largely operating but it also helped direct lower courts on how to rule in challenges when expertise is crucial or written laws don’t cover every possible future scenario. For example, the doctrine empowers agencies to adjust regulations when better information comes to light, if unexpected emergencies arise (like the Covid pandemic), or when circumstances shift, knowing that they have a better chance of winning in court.

“Initially this doctrine was embraced by judges and scholars of all stripes as a neutral principle for how you sort things out when Congress leaves some of the questions unanswered,” said David Doniger, senior federal strategist on climate & energy for Natural Resources Defense Council (NRDC), an environmental advocacy organization, and a lawyer on the 1984 case that created the doctrine.

Critics, including current conservative justices, have raised concerns that the doctrine effectively gives law-making power to federal agencies that should be left only to Congress. “It has made it too easy for agencies to revise regulatory requirements and too difficult for courts to police the boundaries of agency authority,” Jonathan Adler, a professor of law at Case Western Reserve University wrote for the CATO Institute, a conservative thinktank.

Dan Farber, the faculty director of the Center for Law, Energy, and the Environment at Berkeley Law, argued that Chevron actually provides more consistency and a nationally uniform idea of what laws mean. “Agencies really know a lot more about these laws than a judge does,” Farber said. Leaving interpretations of laws to judges rather than agencies could lead to piecemeal implemented, at times rooted in ideology. “[The doctrine] creates more predictability for everybody.”

How did we get here?

The Chevron doctrine has become a conservative flashpoint, but it actually stemmed from a case that was about deregulation – not one enforcing stricter federal laws.

That 1984 case, Chevron USA. Inc v Natural Resources Defense Council, came to the supreme court on appeal from the Reagan administration’s Environmental Protection Agency, then led by Anne Gorsuch Burford, Justice Gorsuch’s mother. The EPA had lost a lower court judgment on whether it had the right to allow businesses to exploit loopholes that would effectively scale back the application of the Clean Air Act.

It all came down to questions over the word “source.” After Congress passed a bill creating an extensive review process for any new stationary source of air pollution (say, a factory), Reagan’s EPA softened the definition to muddy the new requirements and free companies to more easily make changes. In the agency’s view, this could allow factories to skip the lengthy review process for new pollution sources, as long as they reduced emissions in other ways to keep their overall emissions at the same level.

With a 6-0 vote, the Supreme Court agreed. Justice John Paul Stevens’ opinion outlined the two-step test concluding that agency experts should be empowered to fill policy gaps left by the legislative branch – not judges.

“Judges are not experts in the field, and are not part of either political branch of the Government,” he wrote. “While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices – resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities … Federal judges – who have no constituency – have a duty to respect legitimate policy choices made by those who do.”

Jody Freeman, a leading administrative law expert at Harvard Law School, explains that the 1984 ruling delegated power to agencies and their experts, enabling them to “regulate our modern economy, set and enforce public health standards, protect consumers, and much more”. For decades, this remained an uncontroversial position. But as power shifted to new administrations – ones determined to use it to enforce stronger regulations – support from the right waned.

“You really find [conservatives] becoming disenchanted around the Obama administration when they started seeing that Chevron might not work out in their favor,” Farber said.

What might happen if it’s overturned – and why does it matter?

The challenge taken up by the supreme court stems from two cases brought by herring fishermen, who balked at a policy requiring them to pay for the government overseers required onboard their ships to ensure against overfishing.

Government officials tasked with monitoring fishermen determined that these observers would be paid by the fishermen themselves. Chevron deference gives the agencies the benefit of the doubt to make that call. The fisherman in these cases – which are expected to be ruled on together – argue that amounts to government overreach.

Their case, bankrolled and supported by a slew of conservative and corporate interest groups, including by billionaire Charles Koch, was selected specifically to challenge the doctrine – and regulatory authority more broadly – now that a conservative majority sits on the court.

Overturning or limiting the doctrine is “part of a larger project to restrict the federal administrative state,” said Freeman. “The prevailing view among anti-regulatory activists now seems to be that only Democrats use the administrative state to regulate, so Chevron disproportionately helps them,” she added. Now, conservatives see the herring fisherman’s case as a chance to pull that power away from the government.

Doniger, the lawyer who fought and lost the NRDC’s case, agrees – and is now a strong advocate for preserving the doctrine. He sees the attacks on the doctrine as an attack on the regulatory authority more broadly, limiting the scope of big ambitious policy, and paving the way for more regulations to be overturned – including ones already decided by courts in the past.

“This is going to make the powerful more powerful and the powerless more powerless,” he said. “We have to remember why we have a government and why we need a government – it is to protect people,” Doniger added. “If the government can’t enforce the catch limits the herring fisherman will overfish and cut their own throats.”

With a conservative majority on the court and several outspoken critics, it is unlikely the doctrine will be allowed to stand as is. But it might not be unwoven entirely.

“A more likely possibility is that they will uphold it but explain it in a way that may be a shift from the way it has been applied in the past,” Farber said. Ultimately, he added, this would mean a “gentler version” where the executive branch gets less deference. There’s also a possibility that the court will strike down Chevron deference but replace it with something new that clarifies its scope and how it should be used.

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Experts warn that if the supreme court decides to end deference entirely without outlining something new, it could create chaos. Not only would this upend the framework on yet-to-be-decided cases, but it could open the floodgates for decisions of the past to be brought back to court. This includes regulations pertaining to everything from telecommunications to food and safety.

“If the court overturns Chevron, it will have aggrandized its own power at the expense of Congress, the administrative state and the president, and thrown critical day-to-day decisions necessary to implement scores of federal statutes to the federal judiciary,” Freeman said. “It will gum up the works for federal agencies and make it even harder for them to address big problems. Which is precisely what the critics of Chevron want.”