Power grabbed, because notwithstanding the majority’s protestations of umpire-like humility, the move to overrule Chevron v. Natural Resources Defense Council is yet another enhancement of judicial authority over the coordinate branches.
And hubris squared, because the court executes its power grab by, once again, ignoring the self-imposed restraint required by the doctrine of stare decisis, the rule that courts should be reluctant to cavalierly jettison their precedents — in this case one that has been the cornerstone of administrative law since 1984.
Administrative law doesn’t pack the emotional punch of abortion access or LGBTQ+ rights, but the day-to-day impact of this seemingly arcane issue is profound. The fundamental question in Friday’s ruling boiled down to: “who decides,” courts or agencies? The conservative majority’s answer — courts — affects everything from clean air to drug safety to student loans, the broad landscape of government regulation. And that power matters more than ever now that Trump, who had appointed 28 percent of federal judges by the time he left office, has the prospect of naming more in a second term.
Legal conservatives hostile to the administrative state and a business community unhappy with what it viewed as overregulation have been gunning for Chevron for years, though it was initially a win for their side and initially supported by such conservative jurists as Justice Antonin Scalia.
In Chevron, an environmental group challenged a clean-air regulation issued by the Reagan administration’s Environmental Protection Agency. Rejecting the group’s claim, the court set out a two-part test for courts to follow in reviewing the actions of federal agencies. First, is the underlying law that the agency is applying ambiguous? Second, if it is, is the agency’s interpretation a “permissible” one? If so, judges should defer to the agency’s interpretation of the statute they administer, even if that is not the view they would have reached on their own.
This was a sensible power-sharing arrangement. Every law setting out regulatory authority is going to contain gaps and ambiguities. Agencies are best suited to interpret the statutes under which they operate, and to deal with the myriad intricate and technical questions that inevitably arise. For their part, courts aren’t supposed to be policymakers or best-positioned to make these expert judgments.
Now, thanks to a group of Atlantic herring fishermen who challenged a regulation requiring them to pay for government monitors on their boats, the courts are back in charge. In an opinion for the majority, Chief Justice John G. Roberts Jr. asserted that Chevron had improperly forced courts to stop doing their basic job — figuring out the best meaning of the law at issue — and blindly defer to bureaucrats.
“Chevron does not prevent judges from making policy,” Roberts wrote. “It prevents them from judging.”
He called the 1984 ruling “a judicial invention that required judges to disregard their statutory duties,” and said stare decisis did not require the court to stick with a “fundamentally misguided” ruling that had proven so “unworkable” in practice that the court had been forced repeatedly to cut it back and hadn’t even relied on it since 2016.
Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson and taking the step of reading her dissent from the bench, accused the majority of continuing its campaign to arrogate to itself authority that Congress has assigned to administrative agencies. The dissent cited recent decisions overturning the Occupational Safety and Health Administration’s vaccine mandate, the Environmental Protection Agency’s regulation of greenhouse gas emissions, and the Education Department’s loan forgiveness program.
“But evidently that was, for this Court, all too piecemeal,” Kagan wrote. “In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”
Piling hubris upon hubris, Kagan said, the court’s overturning of Chevron made a “laughing stock” of stare decisis, especially because, unlike in cases involving constitutional interpretation, Congress would have been free over the ensuing 40 years to overrule the decision if it disagreed.
The majority’s “justification comes down, in the end, to this: Courts must have more say over regulation — over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on,” Kagan wrote. “The majority disdains restraint, and grasps for power.”
Where do things go from here? U.S. Solicitor General Elizabeth B. Prelogar had warned the court that overruling Chevron, which has been cited in more than 17,000 lower court cases, “would be a convulsive shock to the legal system.”
Roberts tried to forestall some of that, instructing that “we do not call into question prior cases that relied on the Chevron framework.” The fact that the court itself had already cut back on Chevron and largely ignored it might limit some of the damage. Especially in highly technical cases, courts might continue to defer to agency expertise.
Still, without the restraining effect of Chevron deference, it’s not hard to imagine conservative litigants and corporations racing to friendly jurisdictions to bring challenges to agency action. In a Republican administration, the same could happen, just the other way around. Without the unifying requirement of deference, there could be a flood of conflicting rulings as different courts reach different results.
But eliminating Chevron was on the conservative majority’s to-do list. And, so, it did.
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