Newsweek: The Chevron Doctrine Runs out of Gas
Newsweek
The Chevron Doctrine Runs Out of Gas | Opinion
Published Jun 28, 2024 at 4:36 PM
Retired Judge and Author
Supporters of the rule of law should welcome the Supreme Court‘s abandonment of the so-called “Chevron doctrine.” Most of its supporters misunderstand it. The rule, named for a case involving that gas giant, is that courts should defer to the judgments of administrative agencies. What doctrine supporters ignore is the kind of judgments at stake in the Supreme Court’s overruling of Chevron on June 28.
Supporters of Chevron deference see a power grab in the offing. They imagine right- leaning jurists strangling regulatory agencies as they attempt to reign in the country’s most powerful business interests.
But that’s just a cartoon. Maybe one or two justices see it that way. But as Chief Justice John Roberts correctly framed it, the real issue in the case was not whether courts should defer to judgments made by agencies like the Environmental Protection Agency, but whether courts should defer to every judgment of these agencies, including their interpretations of the laws that define the limits of their own power.
Agencies like the EPA have been created by Congress to be experts in their fields. With the EPA, that mission includes protecting us from pollution. Key officials at the EPA have the education, training, and experience to make judgments in the public interest about how much pollution is too much—about the best methods of avoiding environmental damage and abating it—about the dangers of climate change. Judges should take these views seriously. But about what the law means? There is no sign Congress meant them to do the work of judges, and as Justice Clarence Thomas pointed out in a concurring opinion, Congress hasn’t the power to assign the core function of the judicial branch to the executive branch anyway.
Too often, the now-overruled decision in Chevron made federal agencies judges in their own cases. The Chevron ruling said that when an agency assigned to administer a law “reasonably” interprets the extent of the powers Congress has granted it “implicitly,” the courts will defer to the agency rather than judge for themselves whether the agency has exceeded its legal limits. If Congress disagrees it can change the law.
In practice, the doctrine also was a chance for judges to get rid of cases. If they were satisfied administrators had been reasonable, judges simply said, “not my job,” and let the agency’s view stand.
But this was always bad reasoning. As Chief Justice Roberts pointed out, since Marbury v. Madison in 1803 it has been settled that “it is emphatically the province and duty of the judicial department to say what the law is.” And congressional inaction is hardly reliable. During divided government and hyper-partisanship, “congressional inaction” is more of a redundancy than a reflection of the legal motto “silence means consent.”
Consider Loper and Relentless, the two appeals court decisions brought by herring fishermen that prompted the Court to overrule Chevron. Congress authorized the National Marine Fisheries Service to require federal monitors to accompany fishermen to keep them from overfishing. Congress didn’t say the Fisheries Service could or couldn’t make the fishermen pay for the monitors. The fishermen say there is no legal authority to make them pay, while the agency says it can make them pay because Chevron lets it “reasonably” interpret the law.
The question in the cases wasn’t about what’s good for fish. It wasn’t about pollution of the seas or exactly how many herring may be headed for the jar without unduly depleting fish stocks. It’s purely a legal pickle.
Applying Chevron, the two circuit courts of appeal were likely correct in letting regulators reasonably decide for themselves whether the law allows them to impose the charges. But it was still like asking the Fisheries Service to regulate auto safety. It’s just not in the job description.
To the extent it allows agencies to do judges’ jobs, the Supreme Court was right to overrule Chevron. Government experts should be respected when they act within their expertise. While in dissent, Justice Elena Kagan worries they no longer will be, nothing about the majority decision requires this. Courts remain free to give special favor to special knowledge—they just aren’t forced to turn over their special responsibility for law to those charged with following it rather than deciding it.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.
