The Supreme Court heard arguments on Wednesday in a case that, although it hasn’t grabbed nearly as many headlines as some of the court's recent high-profile rulings, could end up being one of the most consequential decisions in recent court history — with profound implications on how the government works and what it’s able to do on behalf of the public.
On the surface, the case centers around arcane disputes over commercial fishing rules that few people outside of the industry would care about.
But in reality, it represents a direct challenge to one of the most important legal precedents of the past several decades. That decision, issued nearly 40 years ago, has allowed the federal government to set policy on everything from water safety to public health to environmental protection.
When Congress passes laws dictating what the government should do, it often uses broad language that’s light on details. The nitty-gritty of deciding how to follow through on those mandates typically falls to what’s known as the administrative state, the vast collection of more than 400 agencies within the executive branch designed to carry out specific tasks.
The Clean Air Act, for example, directs the government to “protect and enhance the quality of the Nation's air resources.” It’s up to the Environmental Protection Agency to decide how to “protect” or “enhance” air quality by choosing things like which pollutants should be banned, how much of certain toxins can be released into the air and how to spend federal dollars allocated for clean air.
Inevitably, this arrangement brings up debates about how much power these agencies should have to do things that aren’t explicitly stated in the law. To help settle this problem, the Supreme Court in 1984 established what’s called the “Chevron doctrine” in a case brought by the multinational energy company.
What is the Chevron doctrine?
The Chevron doctrine states that whenever there’s uncertainty about the scope of an agency’s power, the courts should defer to the authority of the government’s experts as long as they’re acting “reasonably.”
Chevron is believed to be the single most-cited case in American administrative law. It has been referenced in more than 17,000 federal court rulings alone. Among many other things, it has served as the legal basis for federal climate policy, workplace safety rules, COVID-19 vaccine mandates and a variety of immigration rules.
In essence, if the government is doing anything that’s not explicitly written out in the law, it’s able to do it because of Chevron.
Conservatives have opposed the Chevron doctrine for years under the belief that it gives the government far too much power. Legal analysts say Wednesday’s arguments are a strong indication that the doctrine’s critics may be on the brink of achieving their long-standing goal of eliminating it for good.
Why there’s debate
Democrats and liberal legal experts have issued dire warnings about what could happen if the Chevron doctrine is eliminated. They argue it will dramatically limit the government’s ability to respond to a host of the biggest problems facing the country, including climate change, inequality and current and future health crises.
Others make the case that ending Chevron will mean that unelected judges, not experts, will have the power to set sweeping rules on fundamentally important issues they barely understand. There are also concerns about giving so much policy-making power to judges who aren’t in any way accountable to the public.
But conservatives say the doctrine allows unelected bureaucrats to impose aggressive limits on the American people far beyond the scope of their actual powers. They argue that ending it will put authority over how the country is run back in the hands of Congress, where it belongs.
Legal experts say the court’s conservative justices appear very likely to significantly reduce the scope of the Chevron doctrine, if not eliminate it altogether. A final ruling is expected in early summer.
If Chevron is eliminated, the government’s power to do just about anything will be weakened
“Here’s the bottom line: Without Chevron deference, it’ll be open season on each and every regulation, with underinformed courts playing pretend scientist, economist, and policymaker all at once.” — Mark Joseph Stern, Slate
Courts need to have the ability to stop executive power grabs
“Judicial review is the essential check on executive overreach, yet Chevron put a brick on the scale by committing the courts to favor the government’s positions. It is all too easy for courts, when faced with difficult or contentious interpretive questions, to waive the ambiguity flag and defer.” — David B. Rivkin Jr. and Andrew M. Grossman, Wall Street Journal
Experts, not unelected judges, should be the ones making complicated and important decisions
“Scrapping the doctrine, long a goal of the conservative legal movement, would make it far easier for the courts to block and overturn federal regulations — anything from Clean Air Act restrictions to food safety requirements to workplace health mandates.” — Matt Ford, New Republic
Chevron allows the government to trample the rights of everyday Americans
“While big businesses might welcome the doctrine's demise, so should anyone who cares about due process, the rule of law, and an independent judiciary, which are especially important in protecting ‘the little guy’ from overweening executive power.” — Jacob Sullum, Reason
The death of Chevron would be a victory for big business at the expense of everyone else
“Chevron deference is key to efficient government regulation. A Supreme Court decision that hamstrings agency regulation will further free megacorporations to maximize profit at the expense of the public.” — Madiba K. Dennie, Balls and Strikes
Chevron has allowed bureaucrats to seize far more power than they should ever have
“Agencies have fully supplanted Congress as the center of gravity for American policymaking. They are far bolder in claiming immense and unprecedented power under the auspices of old laws. They are far more willing and able to leverage regulatory uncertainty under vague statutes.” — Adam J. White, City Journal
Congress could finally be forced to do its job
“Eliminating Chevron would not, as excitable progressives claim, cripple the government’s power to do progressives’ favorite thing: regulate. Congress’s regulatory power would be undiminished. Congress would, however, have to be more involved in writing, and therefore accountable for, regulations.” — George F. Will, Washington Post
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Photo illustration: Jack Forbes/Yahoo News; photos: Getty Images (2)