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Damn precedent

The Supreme Court Upends the Separation of Powers

Killing off Chevron deference, the court moves power to the judicial branch, portending chaos.

The Supreme Court building with security fencing in front of it.
Michael A. McCoy/Getty Images

The Supreme Court upended how the federal government works on Friday. In a landmark decision in its war on federal regulatory power, the justices formally overturned a key doctrine that determined when and how courts should interpret ambiguous federal laws.

Forty years ago, in Chevron v. National Resources Defense Council, the Supreme Court ruled that when a federal agency enforces an ambiguous law, courts must defer to the agency’s interpretation of that law so long as it is “reasonable.” Congress and the executive branch have operated against this backdrop for decades when drafting laws and writing regulations.

No longer. “Chevron is overruled,” Chief Justice John Roberts wrote for the court in Loper Bright Enterprises v. Raimondo. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedures Act] requires.”

The court’s three liberals denounced the ruling in vivid terms as a threat to American democracy by an unelected branch of government. “A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority,” Justice Elena Kagan wrote. “The majority disdains restraint, and grasps for power.”

That may be an understatement. Chevron has been cited more than 7,000 times by the lower courts, typically to defer to the democratic branches of government when deciding policy questions. The upshot of Friday’s ruling is that right-wing judges across the country now have a freewheeling veto over any new federal rule or regulation that they think is “ambiguous,” subject to Supreme Court approval.

The case itself centers on a dispute between fishing companies and the National Marine Fisheries Service, which, as its name suggests, regulates the nation’s fisheries. The Magnuson-Stevens Act gives the NMFS the authority to place observers on some fishing vessels to collect data “necessary for the conservation and management of the fishery.” In some instances, the fishing vessel itself is required to cover some or all of the costs of the observer program.

In 2013, the NMFS began requiring the fishing companies that brought this case to pay for observers to monitor the Atlantic herring fisheries. The companies sued the NFMS and the secretary of commerce, who oversees the agency, in 2020 after a regulation making the change permanent was finalized. The lower courts upheld that decision, noting that the fisheries law in question was “ambiguous” and thus Chevron required deferring to the agency’s interpretation of it.

Congress writes laws in broad terms. For more than a century, lawmakers have left the precise details of enforcing those laws to a constellation of federal agencies that are staffed by experts and overseen by presidential appointees. The Environmental Protection Agency generally does not need new legislation every time it wants to ban a dangerous air or water pollutant, for example, nor does the Food and Drug Administration need lawmakers’ permission to approve each new drug for medicinal use.

This approach allows federal regulators to respond to new situations as they arise—so long as their actions fall within the original authority granted to them by Congress. So what happens when someone questions the agency’s legal authority to enact a particular rule or regulation? What if an agency enforces its legal authority too broadly in someone’s eyes? The Supreme Court answered that question in the 1984 case that gave “Chevron deference” its name.

Writing for the court, then-Justice John Paul Stevens explained that challenges to an agency’s statutory authority to enact a policy are rarely about statutory questions. Instead, they are often actually challenges to “the wisdom of the agency’s policy.” If the lower courts determine that the agency’s interpretation is “a reasonable choice within a gap left open by Congress,” he wrote, “the challenge must fail.”

Stevens justified this approach in democratic terms. “In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do,” he concluded, quoting from precedent. “The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: ‘Our Constitution vests such responsibilities in the political branches.’”

To Chevron’s defenders, this approach merely formalized what had already been the long-standing practice of the federal courts. Among them at first was Antonin Scalia, who joined the court after Chevron was decided. “Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known,” he explained in a 1989 lecture.

Chevron deference also had its fair number of critics in conservative legal circles. Many of them saw the doctrine as an abdication of the judicial branch’s responsibility to interpret the law. Roberts’s decision is replete with references to the importance of the federal judiciary and its paramount role in interpreting statues. “In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that ‘it is emphatically the province and duty of the judicial department to say what the law is,’” he wrote at one point in his opinion.

Because of that criticism, Friday’s ruling came as no great surprise. Most of the court’s conservative justices had already voiced criticism of Chevron deference. They relied on it in fewer and fewer cases and, in some instances, outright ignored it when it would otherwise be relevant. In Loper Bright, the court could have ruled that the agency’s interpretation of the law was not “reasonable,” thereby bypassing questions about Chevron deference itself. There was good reason to believe this: The law in question, for example, explicitly authorized the NMFS to require companies to fund observers in specific circumstances, and monitoring Atlantic haddock populations wasn’t among them.

Instead, the conservative justices took the opportunity to dismantle Chevron itself. Roberts pointed to the Administrative Procedures Act, which provides the legal scaffolding for how federal agencies issue new rules and regulations. That law includes a provision known as Section 706 that tells federal courts to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”

To Roberts, that provision was fatal to Chevron. “The APA thus codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment,” he wrote. Section 706, he explained, “prescribes no deferential standard for courts to employ in answering those legal questions.”

In rebuttal, Kagan noted that the provision in question neither prescribed nor proscribed any particular standard of review at all. A deferential standard, she explained, was just as much of an interpretive tool for courts to use as a standard that requires courts to interpret it anew. Kagan argued that the court’s pre-APA and post-APA case history supported deference, citing leading legal experts of administrative law.

“The majority’s whole argument for overturning Chevron relies on Section 706. But the text of Section 706 does not support that result,” she wrote. “And neither does the contemporaneous practice, which that text was supposed to reflect. So today’s decision has no basis in the only law the majority deems relevant. It is grounded on air.”

Whether courts use Chevron deference or not has serious real-world implications for federal policymaking. Kagan cited multiple examples from major federal statutes where agencies must make judgment calls about how best to exercise their statutory authority where the law is fairly ambiguous.

“Under the Medicare program, reimbursements to hospitals are adjusted to reflect ‘differences in hospital wage levels’ across ‘geographic area[s],’” she wrote. “How should the Department of Health and Human Services measure a ‘geographic area’? By city? By county? By metropolitan area?” Who should define what counts as “the natural quiet” for a law requiring the government to reduce airplane noise pollution in the Grand Canyon, or whether a specific amino acid sequence is a “protein” eligible to be regulated by the FDA, or how many animals form a “distinct population segment” under the Endangered Species Act?

“In each case, a statutory phrase has more than one reasonable reading,” she wrote. “And Congress has not chosen among them: It has not, in any real-world sense, ‘fixed’ the ‘single, best meaning’ at ‘the time of enactment’ (to use the majority’s phrase). A question thus arises: Who decides which of the possible readings should govern?” Kagan’s answer was the democratically accountable branches; Roberts’s answer was federal judges.

This is a recurring theme in the court’s recent rulings. The conservative legal establishment is generally hostile to federal regulations, as are the wealthy donors who fund many of the right’s key institutions. To that end, the Supreme Court’s conservative majority is particularly hostile to what can only be described as novelty in American governance: the idea that someone might use existing solutions to tackle new policy problems.

Instead, the court gives contradictory answers on how the democratic branches should actually govern. The major-questions doctrine, for example, gives the justices a freewheeling veto to overturn regulations when it thinks Congress did not speak “clearly” enough on matters of “vast economic and political significance” to authorize them. (No ambiguity there!) To that end, as Kagan noted, the court has ruled against the Department of Education’s efforts to forgive student-loan debt, the Occupational Safety and Health Administration’s efforts to protect workers from Covid-19, and the EPA’s efforts to reduce carbon emissions from power plants.

Even when Congress does speak clearly, however, the court finds a way to make things less clear. The conservative justices recently overturned the ATF’s regulatory ban on bump stocks by concluding that the device, which allows someone to fire between 400 and 800 rounds a minute, “does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does.” Good luck finding someone who can fire six to 12 rounds every second for any meaningful period of time without mechanical assistance.

In last term’s decision on the Clean Water Act, the court’s conservatives (minus Justice Brett Kavanaugh, this time) tried to interpret what counted as federally protected wetlands. Congress said emphatically that the law protected wetlands that were “adjacent” to the “waters of the United States,” meaning to apply it broadly. The majority instead concluded that the law only protected wetlands that were “adjoined” to it with a “continuous surface connection,” which is not the same as “adjacent” at all. By one estimate, that change wiped out protections for nearly 45 million acres of wetlands across the country.

Other examples abound. With Chevron’s demise, the court’s conservative majority gave itself and other right-wing judges in the lower courts even more ways to kneecap new federal rules and regulations on dubious and arbitrary grounds. Friday’s ruling, Kagan warned, “puts courts at the apex of the administrative process as to every conceivable subject—because there are always gaps and ambiguities in regulatory statutes, and often of great import.”

“What actions can be taken to address climate change or other environmental challenges?” she continued. “What will the Nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.? In every sphere of current or future federal regulation, expect courts from now on to play a commanding role.”

The Supreme Court has long made clear how it wants this country to be governed. State legislatures can gerrymander congressional seats to cement a single party in power. Wealthy donors can spend unlimited amounts of money via superPACs in any remaining competitive seats to influence the outcome. Governors and senators can receive Rolexes and fur coats from rich benefactors without being charged with bribery. State and local officials can take thousands of dollars in “gratuities” from the companies to which they give taxpayer funds without violating federal anti-corruption laws.

And if any vexing federal regulations still manage to slip through the cracks, the justices will be there with a panoply of tools to make sure they don’t survive.