
A 40-year-old court case that supercharged the federal bureaucracy is now in peril.
Much virtual ink is spilled by progressives over the so-called “threat to democracy” posed by a second Trump term. But in 1984 the Supreme Court handed down a ruling in Chevron v. Natural Resources Defense Council that arguably did more to frustrate America’s constitutional order than any other political event since.
What Chevron Did
The decision hinged on the Environmental Protection Agency’s (EPA) redefinition of a single word, “source,” in the Clean Air Act passed by Congress in 1963. In 1981, the agency narrowed the meaning of the word to the point that companies could more easily take on new industrial projects, even if those projects increased their total air-pollution emissions.
The problem, of course, is that the EPA’s move frustrated the original intent of the Clean Air Act, which aimed to reduce air pollution.
The Natural Resources Defense Council, an environmental activist organization, petitioned for a review, and the DC Circuit Court struck down the EPA’s new definition of “source.” The Chevron Corporation, which had benefited from redefinition, appealed to the Supreme Court, which unanimously sided with Chevron and the EPA.
In the 1984 Court’s view, whenever Congress passes a law with “ambiguous” terms, it implicitly delegates to federal agencies the authority to choose any “reasonable” definition for those terms.
Not only that, the Court’s ruling indicated a “greater institutional competence” of agencies – rather than courts – to resolve policy questions.
The Effects of the ‘Chevron Deference’
The Chevron case was a triumph of the administrative state that, while it works for the executive branch on the surface, could now enjoy the accession of federal judges when it comes to interpreting and enforcing ambiguous laws passed by Congress.
Alexander Thomas MacDonald of the Federalist Society explains:
[Chevron’s] core holding is that when a statute is ambiguous, the agency charged with administering the statute gets the first crack at interpreting it. And if the agency’s interpretation is “reasonable,” courts should defer—even if they would have read the statute differently on their own.
Then-Circuit Court Judge Antonin Scalia helped formulate the doctrine that grew out of the case by coming up with a two-step practical test to determine if a regulation is lawful.
In practice, Chevron deference has powered a trend toward greater judicial deference to agencies like the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and the Centers for Disease Control and Prevention (CDC), among many others.
Chevron provides the Department of Energy (DOE) with its confidence to dictate how your dishwasher is made. Chevron gives the EEOC the hubris to force employers to give paid leave for their employees’ abortions. Get the picture?
The Inevitable Administrative State?
Since the Wilson administration in the early 20th century, progressives in the government have been attempting to reshape our constitutional republic. Chevron was a major linchpin in the effort to jettison the three-branch system of checks and balances in favor of permanent bureaucrats who are unaccountable to the people.
In short, instead of a government of the people and by the people and their elected representatives, progressives want a Deep State populated by an expert elite ensconced for life in hundreds of federal agencies.
The 1984 Chevron ruling, a massive win for these forces, has been cited in thousands of cases since that have affirmed the rights of the executive branch – which staffs these agencies – to interpret statutes.
But that Chevron deference could be overturned this month.
The Challenge to Chevron
Two cases – Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce – presented oral arguments in January challenging the Chevron deference.
Nearly 10 years ago, an agency called the National Marine Fisheries Service passed a rule that required fishermen to pay the salaries of the federal monitors required to be on board their boats. MacDonald writes:
The court conceded that the statute required payment only in a few circumstances –and this wasn’t one of them. But the statute didn’t explicitly forbid the Service from requiring payment in other circumstances. That silence left the statute ambiguous. And given the ambiguity, the court deferred to the agency’s view.
The Court agreed to hear questions on the Chevron deference, and based on the justices’ responses during oral arguments, SCOTUS watchers expect the Court to overturn or at least curtail the power of federal agencies.
A Threat to Health?
Pro-administrative state advocates are sounding the alarm. In particular, they warn that ending the Chevron doctrine would diminish the power of health-related agencies like the FDA and CDC during health emergencies.
As Joel Zinburg at City Journal notes, however, the “experts” at these agencies have been anything but benevolent dictators of policy:
…during the Covid-19 pandemic, federal agencies’ purported scientific expertise was evidence-free, politically and personally motivated, dismissive of other points of view, and destructive of public trust. Some agency pronouncements, as Anthony Fauci admitted about the six-foot distancing rule, “sort of just appeared.”
It was precisely Chevron that gave federal agencies the kind of power Americans felt in full after the outbreak of COVID-19. OSHA’s vaccine and testing mandate, for example, affected 84 million workers across the nation until the current Supreme Court struck it down as unconstitutional.
Nevertheless, supporters of Chevron insist that it is the unelected “experts” in these agencies that are best able to govern the American people.
Why Catholics Should Care
CatholicVote Vice President Joshua Mercer said pro-lifers should rejoice if the Supreme Court curtails the Chevron deference. He cited the 2009-2010 fight over Obamacare as a prime example.
“Liberal Catholics insisted that Obamacare would never be used to force Catholics to pay for abortion pills and sterilizations. We knew this was a lie. That’s why CatholicVote and other pro-life groups called for strict legal language forbidding the use of Obamacare to promote abortion. Our warnings were ignored. Obamacare was passed. And months later, we got the HHS mandate,” said Mercer:
We’re seeing this very same cycle repeat with the Pregnant Workers Fairness Act. That’s why we need the Supreme Court to reinstate rule or law so that Congress cannot pass these vague laws and rely on unelected bureaucrats to do their bidding.
Life After Chevron?
While the court’s ruling could have ripple effects across the federal government, where agencies frequently use highly trained experts to interpret and implement federal laws, it would probably not signal a restoration of the original constitutional order of lawmaking and judging.
Just as Chevron was one case among many that established the modern administrative state, Loper will not be able to undo the spirit of Chevron deference entirely.
But it could put a check on the power of imperialistic agencies, and that would be an important step toward a revival of the true American constitutional order.
