The Washington Post
To hear some describe the stakes, a pair of cases argued before the Supreme Court on Jan. 17 could create a watershed moment in American government.
Business lobbies and conservative activists see an opportunity to restrain an out-of-control “administrative state.” Progressives fear the court will render the federal government incapable of responding to modern challenges from climate change to artificial intelligence.
At issue is a deceptively arcane matter: who gets to interpret the law when Congress leaves it ambiguous as it often does, sometimes inexcusably, but sometimes unavoidably. The current rule, called “Chevron deference” — after the 1984 case in which the court developed it — instructs judges to uphold challenged regulations as long as they reflect an agency’s “reasonable” reading of a genuinely ambiguous law.
Agencies, the logic goes, have more expertise and on-the-ground experience than judges and are more democratically accountable. Absent a Chevron-like doctrine enforcing a degree of judicial modesty, judges could fill gaps in the law according to policy considerations they are poorly equipped to evaluate.
Conservatives see this as an abdication of the judiciary’s power to “say what the law is,” its exclusive purview since Marbury v. Madison. They also see it as backdoor encouragement for sloppy statute writing. This is an updated conservative take on Chevron, to be sure. Initially praised by Justice Antonin Scalia, Chevron was a unanimous ruling to uphold a Reagan administration air pollution regulation that environmentalists considered too lax. During a long run of presidencies that, apart from Jimmy Carter’s four years, spanned the late 1960s to the early 1990s, Republicans controlled the White House and the agencies to which judges were deferring.
The distribution of power has shifted since then. With a mix of good luck and Senate GOP leader Mitch McConnell’s application of some hardball politics, Republicans can count on a conservative supermajority on the Supreme Court. Meanwhile, Democrats are winning more presidential elections, and their appointees have used executive powers to issue ambitious rules — on power plants, car emissions, financial markets, credit cards, airlines and so forth.
These political developments, as much as high-minded constitutional principle, explain conservatives’ objections to the doctrine and their broader effort to invigorate judicial supervision of the executive. Chevron or no Chevron, the court majority has already started doing just that, expounding principles such as the “major questions” doctrine to strike down agency actions. In West Virginia v. Environmental Protection Agency, the court rejected a greenhouse emissions program on the grounds that Congress could not have wanted the EPA to wield the hefty regulatory powers the agency claimed without saying so more clearly in the law.
During oral arguments, Chief Justice John G. Roberts Jr. pointed out that the court has not relied on Chevron in years to defer to a federal agency’s interpretation of an ambiguous statute. Ditching Chevron deference would be just another move this court has taken to encourage judicial intervention in executive branch actions.
In time, however, conservatives might come to regret all of this. At their core, the cases the court heard are about power — and, more specifically, whether a 40-year balance between the executive branch and the judiciary should be shifted. Long-term, who wins and who loses will depend on who controls these organs of government.
With the major-questions doctrine in place, courts already have more latitude to prevent liberal presidents from regulating ambitiously. By pushing for Chevron’s destruction, conservatives run the risk that, when Republican administrations try to write weak regulations that arguably fall short of what Congress desired, future courts might not defer to them.
The moment calls for restraint from a court decreasingly interested in this virtue.
Chevron’s underlying logic is sound: On balance, federal experts are better suited to filling gaps in the law than courts. Overturning Chevron would spur advocates of all ideological stripes to bring countless new lawsuits before judges they believe will be sympathetic to their cause; they will have some 800 federal district court judges across the country from whom to choose.
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