Death Of Chevron Deference: Supreme Court Neuters Administrative State

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The foundation of the modern federal government was inexorably altered by last week’s 6-3 U.S. supreme court decision in Loper Bright Enterprises v. Raimondo. The decision (.pdf) overrules the doctrine of “Chevron deference” – which for years enabled federal agencies to adjudicate disputes arising around their implementation of laws under the agency’s purview.

Chief justice John Roberts – writing for the conservative majority – held that “courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

This determination ends forty years of federal courts being directed to defer to an executive agency’s “reasonable interpretation” of ambiguous statutes – and ushers in an era in which it will once again fall to congress to legislate with specificity and courts to adjudicate the legality of federal rules.

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For decades, lawmakers would pass largely symbolic statutes assigning broad power and discretion to bureaucrats to work out the details of specifically what – and how – to regulate. Bureaucrats would then, following the rules of the Administrative Procedure Act, promulgate rules which carried the force of law – and with the assistance of the Chevron doctrine, would in many instances be themselves accountable for determining the legality of their actions.

This arrangement benefitted both lawmakers – who were happy to abdicate their congressional duty to write the actual laws under which we live – as well as the nameless, faceless bureaucrats making policy decisions which would otherwise not be politically viable in a constitutional republic.

To illustrate, look at the auto industry – which federal regulators had hoped to brow-beat into producing mostly electric vehicles by 2032. The problem with that plan in a constitutional republic? The vast majority of U.S. consumers don’t want an electric-only car.

Instead of members of congress having to expend their political capital arguing why you should still vote for them after they voted to relegate you to driving a glorified golf cart, a bureaucrat you’ve never heard of promulgated an arcane rule imposing absurd emissions standards on the automotive industry.

This arrangement is the backbone of the so-called “administrative state.”

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As much as the Chevron doctrine upended it in recent decades, Article I of the U.S. Constitution has always been remarkably clear about who is supposed to be writing the laws in America.

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives,” it noted.

“In recent decades” writes Heritage Foundation president Kevin D. Roberts “members of the House and Senate discovered that if they give away that power to the Article II (executive) branch of government, they can also deny responsibility for its actions. So today in Washington, most policy is no longer set by Congress at all, but by the Administrative State.”

“Given the choice between being powerful but vulnerable or irrelevant but famous, most members of Congress have chosen the latter” Roberts writes.

To be clear – the Loper Bright ruling doesn’t put an end to the legislature’s delegation of authority to executive agencies, but the diktats of these federal authorities will at least now be subject to review from the judicial branch of government, which is likely to more stringently insist that executive agencies only create and enforce the rules which congress specifically tasked them with enforcing.

But this ruling isn’t the only recent decision which degrades the authority of the administrative state.

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“Today’s decision in Loper Bright is not the end of the administrative state, but under the current Supreme Court majority, agency power is likely to continue eroding,” attorneys for the Seyfarth Law Firm wrote in a blog post dedicated to the issue.

“On June 27, 2024, in SEC v. Jarkesy, the Supreme Court held that the administrative law judges of the Securities and Exchange Commission could not impose certain civil penalties, undermining the ability of agencies to impose civil penalties outside of federal court,” they wrote in the post. “After Jarkesy, it is likely we will see ongoing challenges to the lawfulness of SEC administrative law judge appointments and whether the agency structure of the SEC (as investigator, prosecutor, and judge) violates the Due Process Clause of the 5th Amendment. These and other issues threaten to reduce the power of administrative agencies even further.”

The Seyfarth Law Firm’s predictions were proven prescient almost immediately, as just days after the  Loper Bright ruling the court ruled in a separate case that plaintiffs can bring suits against regulatory agencies outside of a previously enforced six-year statute of limitations.

Dissenting justice Ketanji Brown Jackson fretted that the “tsunami of lawsuits against agencies that the court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the federal government.”

South Carolina attorney general Alan Wilson – who has consistently challenged federal overreach – celebrated the Loper Bright ruling.

“The Loper Bright case, better known as Chevron, is a great victory for accountability and the rule of law,” Wilson said. “Justice Gorsuch said it best. ‘Today, the Court places a tombstone on Chevron no one can miss.’”

“The federal government continues to grow beyond its designed scope, but now we’ll be able to reign in and limit its power,” Wilson added.

Wilson stood alongside twenty-two other conservative attorneys general in filing an amicus brief arguing for the end of the doctrine – and concluded his statement to this news outlet by noting he was “pleased the court agreed with our position.”

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Attorneys at Baker Donelson, a national law firm which litigates administrative issues, distributed a document telling clients to expect a “plethora of litigation challenging federal rules and regulations” as a “court could substitute an agency’s interpretation of a regulation that relies on what the agency thinks is necessary to fulfill its mission, for a court’s interpretation that applies traditional interpretation methodologies like the rules of statutory construction.”

While this litigations will doubtlessly be costly and time consuming, it will serve to restore the some of the checks and balances insisted upon by our nation’s founders.

As Heritage’s Roberts pointed out, it’s up to congress to take back the rest.

“The Administrative State is not going anywhere until Congress acts to retrieve its own power from bureaucrats and the White House,” he noted.

While we at FITSNews don’t advise our readers hold their breath waiting for members of Congress to pivot their focus from having sex with people other than their spouses to restoring the lifeblood of the Republic, the court’s seismic shift demands more from congress, and could be the catalyst for institutional change in coming years.

Count on FITSNews’ continued coverage and analysis of today’s most important political, legal and governmental issues.

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ABOUT THE AUTHOR …

(Via: Travis Bell)

Dylan Nolan is the director of special projects at FITSNews. He graduated from the Darla Moore school of business in 2021 with an accounting degree. Got a tip or story idea for Dylan? Email him here. You can also engage him socially @DNolan2000.

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