Mission accomplished, power seized, in the words of Justice Elena Kagan, arrogance doubled down and decades-old precedent was once again ignored.
Mission accomplished: The Supreme Court's 6-3 decision on Friday to overturn the Chevron doctrine, which provides for judicial deference to federal agencies, achieved a holy grail long sought by conservative legal circles and a central ambition in President Donald Trump's selection of justices.
A power grab was made, because despite the majority’s assertion of umpire-like modesty, the move to overturn Chevron v. Natural Resources Defense Council is a further strengthening of judicial power over the concerted sector.
And the arrogance has doubled, because the Court is once again executing its power grab with no regard for the restraint required by the principle of presumptive precedent, the rule that courts should refrain from lightly abandoning precedent, which in this case has been the bedrock of administrative law since 1984.
Administrative law is not as emotive as abortion rights or LGBTQ+ rights, but the day-to-day impact of these seemingly arcane issues is enormous. The fundamental question in Friday's decision boils down to “who decides”: the courts or government agencies. The conservative majority's answer is “the courts,” which affects everything from clean air to drug safety to student loans to broad areas of government regulation. And with Trump, who appointed 28% of federal judges by the time he leaves office, likely to appoint even more in his second term, that power is more important than ever.
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Legal opponents of the administrative state and business groups unhappy with what they saw as excessive regulation had attacked Chevron for years, but initially won, and conservative legal scholars such as Justice Antonin Scalia initially supported Chevron.
In Chevron, environmental groups challenged clean air regulations issued by the Reagan Administration's Environmental Protection Agency. The Court rejected the groups' arguments and set out a two-part test for courts to follow when reviewing federal agency actions: First, is the underlying law the agency is applying ambiguous? Second, if it is ambiguous, is the agency's interpretation “permissible”? If so, judges should follow the agency's interpretation of the law they administer, even if it is not a view they reached independently.
This was a wise sharing of powers arrangement. All laws providing regulatory powers contain gaps and ambiguities. Executive branches are best placed to interpret the laws they follow and to address the myriad complex, technical questions that inevitably arise. Courts, on the other hand, are not supposed to be policy makers, nor are they best placed to render such expert judgments.
Now, thanks to a group of Atlantic herring fishermen challenging a regulation that would have required them to pay for government observers on their boats, the court is back in control. Chief Justice John G. Roberts Jr. argued in the majority opinion that Chevron had forced the court to abandon the basic work of figuring out the best meaning of the law at issue and unfairly forced bureaucrats to blindly follow it.
“Chevron does not prevent judges from making policy,” Roberts wrote. “It prevents them from deciding.”
He called the 1984 decision “a judicial fiction that required judges to ignore their statutory obligations” and said precedential binding does not require the court to adhere to a “fundamentally erroneous” decision that the court has had to repeatedly scale back because it has proven “unworkable” in practice, and that it has not even relied on since 2016.
Justice Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, read a dissent from the court in which she accused the majority of continuing its quest to appropriate for itself the powers Congress has given the executive branch. The dissent cited recent decisions that have overturned the Occupational Safety and Health Administration's vaccination mandate, the Environmental Protection Agency's greenhouse gas emissions regulations and the Department of Education's loan forgiveness program.
“But that was clearly too piecemeal for this Court,” Kagan wrote. “Today, in one fell swoop, the majority has bestowed itself sole authority over every unsettled question about the meaning of regulatory law, even questions of technical expertise and policy. As if that weren't enough to do, the majority has made itself an administrative czar of the nation.”
Arrogance piled on top of arrogance, Kagan said, making the Supreme Court's overturning of Chevron a “laughing stock” of precedential binding, especially because, unlike cases involving constitutional interpretation, Congress would have been free to overturn decisions if it disagreed with them for the next 40 years.
The majority's “justification, ultimately, is that the Court should have more of a say in regulation — about the delivery of health care, the protection of the environment, the safety of consumer products, the effectiveness of our transportation systems,” Kagan wrote. “The majority despises restraint and seeks to seize power.”
What happens now? U.S. Attorney General Elizabeth B. Preloger has warned that overturning the Chevron decision, which has been cited in more than 17,000 lower court cases, “would send seismic waves through the justice system.”
Justice Roberts prevented some of that, instructing that he would “not take issue with past cases that relied on the Chevron framework.” The fact that the court itself had already cut back on and largely ignored Chevron may limit some of the damage. Courts may continue to defer to agency expertise, especially in highly technical cases.
Still, without the check effect of Chevron deference, it is easy to imagine conservative litigants and companies flocking to friendly jurisdictions to challenge agency actions. Under a Republican administration, the opposite could happen: Without a uniform requirement of deference, different courts could reach different conclusions, leading to a flood of conflicting decisions.
But getting rid of Chevron was on the conservative majority's to-do list. And so it was done.
