By Marjorie Cohn / Truthout
In an ominous but unsurprising development, the Supreme Court has agreed to hear a case that may well imperil our health, safety, labor, clean air and water, food and environmental protections. On May 1, the court decided to reconsider its 40-year-old precedent in the current case of Loper Bright Enterprises v. Raimondo.
This right-wing court, which demonstrated its disregard for legal precedent when it overruled Roe v. Wade, may now overturn the well-settled “Chevron deference.” Doing so would be consistent with the conservative fealty to deregulation in order to protect corporate profits.
The 40-Year-Old Precedent of Chevron Deference
Chevron deference was created in the 1984 case of Chevron v. Natural Resources Defense Council. It requires that when a law is silent or ambiguous on a certain matter, courts must defer to a federal regulatory agency’s construction of the statute if it is reasonable.
“With regard to judicial review of an agency’s construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute,” John Paul Stevens wrote for the unanimous court.
Courts have used Chevron deference to:
- *Uphold the National Labor Relations Board’s decision that live-haul workers are employees entitled to protections of the National Labor Relations Act;
- *Sustain the Environmental Protection Agency’s (EPA) rule that requires states to reduce emissions from power plants that travel across state lines and harm downwind states;
- *Affirm the Department of Labor’s interpretation of portions of the Black Lung Benefits Act that enable coal miners afflicted with black lung disease to receive compensation; and
- *Accept the EPA’s revision of regulations under the Toxic Substances Control Act to provide additional protection from exposure to lead paint.
If the high court overrules Chevron, judges would be free to strike down regulations enacted by agencies such as the National Labor Relations Board, the Environmental Protection Agency and the Department of Labor. Right-wing judges could overturn regulations that benefit workers or limit climate change.
Chevron, which has been cited in more than 19,000 judicial opinions, is one of the most-cited decisions in the federal courts.
Supreme Court May Use Loper Bright to Overrule Chevron Deference
In Loper Bright, a divided panel of the D.C. Circuit Court of Appeals relied on Chevron to reject the commercial fishing companies’ challenge to a rule promulgated by the National Marine Fisheries Service (NMFS). The rule requires the fishing industry to pay the costs of observers who monitor compliance with fishing management plans to prevent overfishing.
Although the statute says the government can require fishing boats to carry monitors, it does not indicate who must pay for them. The appellate court held in Loper Bright that the NMFS’s interpretation that the federal fishery law authorized the industry to fund the monitors was reasonable, so the court should defer to the NMFS’s interpretation.
Citing Chevron, the appellate opinion says, “When Congress has not ‘directly spoken to the precise question at issue,’ the agency may fill this gap with a reasonable interpretation of the statutory text.”
The fishing companies appealed the court of appeals’ ruling to the Supreme Court. The high court agreed to 1) consider whether to overrule Chevron, or 2) clarify whether when a law is silent about “controversial powers expressly but narrowly granted elsewhere in the statute,” there is no ambiguity in the statute, so no deference is necessary.
In order to grant certiorari (review the case), four members of the Supreme Court must agree. If the four who voted to grant cert in Loper Bright are joined by a fifth member in voting for reversal, they could overrule the Chevron case.
Chevron deference has been the law of the land for nearly 40 years. But the judges in the conservative super-majority on the current Supreme Court have cavalierly overturned the court’s own precedents and ignored stare decisis (legal precedent) when it suits their pro-business and religious interests.
U.S. Solicitor General Elizabeth Prelogar wrote in a brief on behalf of the Biden administration that the fishing companies “have not carried their burden of demonstrating any special justification that could plausibly warrant such a departure from stare decisis principles, and this case would be an unsuitable vehicle for reconsidering Chevron in any event.”
Neil Gorsuch has long sought to overturn Chevron. Dissenting in TransAm Trucking v. Alphonse Maddin in 2016, when he was a judge on the Tenth Circuit Court of Appeals, Gorsuch refused to apply Chevron deference. He callously ruled in favor of an employer who ordered a trucker exhibiting signs of hypothermia to drag a trailer that had no brakes or stay put and risk freezing to death.
In his 2016 concurrence in Gutierrez-Brizuela v. Lynch, Gorsuch indicated that Chevron deference should be reconsidered: “Maybe the time has come to face the behemoth,” he wrote. Gorsuch’s record seems to indicate he would readily substitute his own interpretation rather than defer to agencies that are in the best position to make determinations within their purview.
After Gorsuch was nominated to the Supreme Court, the nonprofit organization Alliance for Justice warned about the dangers of courts second-guessing agency experts:
It is difficult to overstate the damage [Gorsuch’s] position would cause. Judge Gorsuch would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people.
Moreover, last year, Gorsuch dissented from a denial of review, arguing that the court “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”
Clarence Thomas also opposes Chevron deference. Although he once favored it, Thomas changed his tune after his wife Ginni accepted secret money from a right-wing network. In 2015, Thomas argued in a concurring opinion that Chevron deference “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to” the executive branch.
Brett Kavanaugh opposes Chevron deference as well. While John Roberts and Samuel Alito have criticized the doctrine, they have not called for overruling it. Amy Coney Barrett has not yet opined on the issue.
Kentanji Brown Jackson, who participated in Loper Bright when she was a judge on the D.C. Circuit, has recused herself from the case in the Supreme Court.
Ending Chevron Deference Would Be a “Judicial Power Grab”
Chevron deference to federal agencies ensures that the authority resides in the executive branch which is accountable to the electorate, as opposed to the unelected, unaccountable judicial branch.
Former Supreme Court Associate Justice Stephen Breyer said that ending Chevron deference to agencies would be a “judicial power grab.”
If the court overturns or severely limits Chevron deference, it will be easier for businesses to challenge regulations throughout the economy. “By centralizing interpretive decisions in agencies supervised by the President, Chevron also promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in administering complex statutory schemes,” Solicitor General Prelogar wrote.
When it recently invoked the “major questions doctrine” for the first time, the court took a significant step toward overruling Chevron. The major questions doctrine allows five judges on the Supreme Court to cancel acts by federal agencies that involve “decisions of vast economic and political significance.” The court’s six-member supermajority used the major questions doctrine to strike down a proposal by the Environmental Protection Agency to limit carbon emissions from power plants.
The Supreme Court will consider Loper Bright during its 2023-2024 term and issue a decision in June or July of 2024.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, the bureau of the International Association of Democratic Lawyers, and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” Radio.