#79 What was the Chevron Deference?

Thanks for reading the Daily Concept. If you enjoyed this newsletter, forward it to a friend. If someone forwarded you this email, click here to subscribe.

Your faithful writer,
Dr. Daniel Smith

Last week, the Supreme Court made what will likely be its most important ruling since it overturned Roe v. Wade two years ago.

In the Loper-Bright case, the Supreme Court’s conservative majority voted 6-3 to overturn what is known as the ‘Chevron deference’.

The Chevron rule, which was established in a 1983 SCOTUS case, played a key role in:

• shaping the relationship between federal agencies and federal courts 

• restructuring the field of administrative law

• determining how America’s federal government — and the 430+ federal agencies that make it up — has worked over the past forty years

In her dissenting opinion in the case, Supreme Court Justice Kentaji Brown Jackson said:

So, why is it important that Chevron was overturned? To put it simply, getting rid of Chevron will enable corporations to file lawsuits against federal agencies on the grounds that they are over-regulating in a way that was not explicitly approved by Congress when the agency was first created.

How does it work? Imagine that the Environmental Protection Agency (EPA) consults with experts to determine the level of contaminants that need to be in drinking water for it to be unsafe.

A chemical company that could be fined for polluting water under the new rules sues the EPA for enacting a regulation that was not explicitly outlined when Congress created the EPA in 1970.

Under Chevron, judges could decide that the EPA has the right to determine its own rules despite lacking explicit Congressional authorization to make rules about water pollution.

In the original Chevron decision in 1983, a majority of SCOTUS Justices ruled that federal agencies should be able to determine most of their own rules when Congressional authority is unclear about how exactly they should work — unless the agency’s interpretation of the statue is seen as unreasonable.

NBC’s Melissa Quinn succinctly explained how the original case created the Chevron deference as a ‘test’ for assessing whether a federal agency’s rules are acceptable:

Here’s a simple version of the test:

So why did the Supreme Court’s conservative majority decide to overturn Chevron?

The simple answer is that the conservative legal movement has long had overturning Chevron as one of their goals, and that the Republican-nominated judges that make up the Supreme Court’s majority were educated and socialized in the world of that conservative legal movement.

Conservative legal scholars have written for decades about their opposition to the ‘administrative state’, and achieving the goal of overturning Chevron will allow the conservative judges that were educated by these scholars to reverse past decisions that empowered federal agencies under the Chevron deference.

What are the short-term and long-term effects of the decision? 

The main short term effect is that law professors who are planning to teach a class on administrative law will need to spend some of their summer re-writing their syllabuses.

Another expected short-term effect is that corporations will begin to file more lawsuits questioning the authority of federal regulators and agencies to restrict their actions.

The two long-term consequences of this decision: it will weaken America’s state capacity and it will be a boon to corporate lawyers.

The term state capacity can be defined as “the ability of governments to effectively implement their policies and achieve their goals.” As a result of this decision, the ability of our federal agencies and regulators to do the things they were created to do will be even more hampered by lawsuits than it already is.

The biggest beneficiary of this change will be lawyers. Moving toward a world where there is more litigation and less effective government will certainly harm your average citizen, but the big law firms that sue the government on behalf of corporate clients are going to be very happy.

There is some hope: In an interview with Politico, University of Pennsylvania law professor Cary Coglianese said:

ART OF THE DAY

Thank you for reading. Please reply to this email if you have any thoughts or feedback.

Yours,
Dan