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The Supreme Court this week announced it is taking up a case that, although it hasn’t grabbed nearly as many headlines as some of its recent high-profile rulings, could have a profound impact on how the government works — and what it’s able to do on behalf of the public.
On the surface, Loper Bright Enterprises v. Raimondo centers around an arcane dispute over commercial fishing rules that few people outside of the industry would care about. But in reality, the case represents a direct challenge to one of the most important legal precedents of the past several decades. It’s a decision that has allowed the federal government to set policy on everything from water safety to public health to environmental protection.
When Congress passes laws dictating what the government should do, it often uses broad language that’s light on details. The nitty gritty of deciding how to follow through on those mandates typically falls to what’s known as the administrative state, the vast collection of more than 400 agencies within the executive branch designed to carry out specific tasks. The Clean Air Act, for example, directs the government to “protect and enhance the quality of the Nation's air resources.” It’s up to the Environmental Protection Agency to decide things like which pollutants should be banned, how much of certain toxins can be released into the air and how to spend federal dollars allocated for clean air.
Inevitably, this arrangement brings up debates about how much power these agencies should have to do things that aren’t explicitly stated in the law. To help settle this problem, the Supreme Court in 1984 established what’s called the “Chevron doctrine” in a case brought by the multinational energy company. The Chevron doctrine states that, whenever there’s uncertainty about the scope of an agency’s power, the courts should defer to the authority of the government’s experts.
Chevron is believed to be the most-cited case in American administrative law. Among many other things, it has served as the legal basis for federal climate policy, workplace safety rules, COVID-19 vaccine mandates and a variety of immigration rules. In essence, if the government is doing anything that’s not explicitly written out in the law, it’s able to do it because of Chevron.
Conservatives have opposed the Chevron doctrine for years under the belief that it gives the government far too much power. Many legal experts believe the Supreme Court’s conservative majority could use this new case to finally eliminate it.
Why there’s debate
Democrats and liberal legal experts have dire warnings about what could happen if the Chevron doctrine is eliminated. They argue it will dramatically limit the government’s ability to respond to a host of the biggest problems facing the country, including climate change, inequality and current and future health crises. Others make the case that ending Chevron will empower judges to set sweeping rules on fundamentally important issues they barely understand, rather than letting experts make those decisions. There are also concerns about giving so much policy-making power to people who aren’t in any way accountable to the public.
But conservatives say the doctrine allows unelected bureaucrats to impose aggressive limits on the American people far beyond the scope of their actual powers. They argue that ending it will put authority over how the country is run back in the hands of Congress, where it belongs.
Some other legal analysts say the end of Chevron won’t have nearly the effect that its defenders or its critics believe it will. That’s because conservative justices on the Supreme Court have recently begun relying on a new theory called the “major questions doctrine” that essentially gives them veto power over any policy they deem to be sufficiently important, including rules that have historically been protected under Chevron.
The court isn’t expected to hear the Loper Bright case until its next term later this year, with a ruling expected some time in early 2024.
The government’s basic ability to function could be at risk
“If Chevron is not quite dead, it is dying. Whether the US government will continue to have the capacity to address pressing national problems will depend on whether the Supreme Court transforms the dark cloud that now looms over the administrative state into some kind of hurricane.” — Cass R. Sunstein, New York Review of Books
The court needs to rein in executive agencies that have grossly overstepped their power
“As long as a law doesn’t forbid the government from doing something, it can do it. Where have we seen this before? The Biden vaccine mandate and eviction moratorium were particularly egregious examples. … There could be five Justices willing to overturn the doctrine or at the least pare it back, which would strengthen the separation of powers and individual liberty. More potentially good news from the High Court.” — Editorial, Wall Street Journal
Ending Chevron would be a major blow to American democracy
“Killing Chevron will be a major victory in the conservative legal movement's war against the administrative state. It'll shift a huge amount of power from the executive branch to the judiciary, allowing totally unaccountable, unelected judges to resolve statutory ambiguities.” — Mark Joseph Stern, Slate
The doctrine allows unelected bureaucrats to run the country
“‘Chevron deference’ has come to mean government by bureaucrats. Drought declarations, wetlands designations, fishing monitors, you name it — the government is here and it’s not going to help you.” — Hugh Hewitt, Washington Post
Fighting climate change will be much more difficult without the Chevron doctrine
“Overturning the doctrine would have major implications for the Biden administration’s climate agenda. It would complicate the administration’s efforts to tackle major issues such as climate change via regulation, including possibly derailing the Environmental Protection Agency’s push to mitigate carbon emissions from the electricity and transportation sectors — the two highest polluting industries in the United States.” — Josh Gerstein and Alex Guillén, Politico
The end of Chevron would make the government much more conservative than voters want it to be
“It is hard to deny that the judiciary — and the decisions that may come under their purview under a weakened Chevron — will lean right. Trump did a phenomenal job of placing right-leaning judges wherever he could, and that’s before you even consider that judges tend to tilt right and that we've [been] living under the most conservative Supreme Court in the last 90 years.” — Chris Williams, Above the Law
Experts, not judges, should be in charge of making complicated decisions that affect millions of people
“No one will know what the rules are until judges with no expertise on the relevant subject matter weigh in. That is an inefficient way to run a government, and it is a bad way to run a country. Federal policy should be set by people who know what they are talking about.” — Ian Millhiser, Vox
Recent rulings have made Chevron essentially obsolete
“Maybe … Chevron is already as good as dead and Loper Bright will simply amount to its final rites. But if the court’s conservative members are looking for tools to curb federal regulatory power, they also have no shortage of them these days.” — Matt Ford, The New Republic
Ending Chevron wouldn’t have much of an impact, but it is still worth doing
“While I would be happy to see Chevron overturned, I am skeptical of claims it will make a huge difference to the future of federal regulation. … Getting rid of Chevron is still worth doing, in my view. While it would impose only modest constraints on regulatory power, it could help protect the rule of law.” — Ilya Somin, Reason
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