What is the big deal with the Chevron deference? 

February 10th, 2024

Thanks for tuning in this Saturday morning. Today we’re talking about the pair of Supreme Court cases getting the most attention from the business community this year: Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
 
Both may undo what’s known as Chevon deference, a legal doctrine long pilloried in conservative circles that stems from the high court’s 1984 decision in Chevron v. Natural Resources Defense Council.
 
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Chevon deference requires courts to defer to a federal agency’s interpretation of law if a statute is vague and if the agency’s interpretation is “reasonable.”
 
Critics allege such deference gives bureaucrats far too much power to “interpret” the law to suit their policy preferences. It supercharges an already sweeping administrative state, the argument goes, leaving businesses and industries subject to the whims of unelected bureaucrats and with little legal recourse.
 
Taken to its logical extreme, the case for canning Chevron asserts that Congress should decide all policy questions, not judges and certainly not unelected bureaucrats. Yes, it requires more thought, time, and negotiation for Congress to be more prescriptive. And yes, that may mean Congress does not answer outstanding policy questions nearly as quickly as federal agencies (if at all).
 
But that is the tradeoff for having elected representatives, rather than career civil servants, making policy decisions. Policymaking responsibility rests squarely with members of Congress. If they are not up to the task, there is no other remedy. Failure and success rests on their shoulders. That is the nature of accountability.
 
A rebuttal to this argument contends that agency staff do have political accountability for their decisions because they work for an elected official – the president of the United States. But this rebuttal ignores that the president leads the executive branch, which is charged with executing policy decisions made by Congress, not making its own.
 
The more compelling rebuttal asserts that Congress, as the nation’s policymaking body, can choose to delegate its authority to the executive branch. Indeed, Congress has done so on countless matters, both explicitly as a matter of law and implicitly by intentionally writing ambiguous statutes.
 
When Congress writes ambiguous statutes, it invites controversies that it refuses to answer. The question then becomes who renders its judgment in the absence of Congress.
 
For many years before the Supreme Court’s Chevron decision, the judiciary often decided such policy matters. Conservatives actually hailed the Chevron decision because it transferred power away from the judiciary and to the executive branch.
 
Justice Antonin Scalia was one Chevron’s most notable defenders. His embrace of the doctrine stemmed largely from the argument outlined above – Congress occasionally writes ambiguous statutes, and it’s simply untenable to not resolve them.
 
In a 1989 Duke University School of Law lecture, Scalia argued that Chevron is necessary for a functioning government. The administrative state has expanded because government is necessarily involved in all manner of highly complex technical matters involving health, energy, computing, and more. Congress cannot predict all of the complicated regulatory questions that may arise, and the judiciary certainly cannot handle the volume of intricate legal questions – so deferring to federal agencies, so long as they act reasonably, is the only practical solution.
 
Conservatives will celebrate if the Supreme Court decides this year to overturn Chevron deference or limit it in some way, but doing so just gets us back to the pre-Chevron status quo, which itself was problematic.
 
Scalia’s core points remain. It seems unlikely Congress will become more prescriptive in writing laws, so vague statutes will still require interpretation. If the executive branch doesn’t have primacy in doing so, then the judiciary will. That may not prove the panacea to the problems of a too-powerful administrative state that some seem to think it will be.