The End of Chevron: Supreme Court Shifts Power Back to Courts, Congress and the People

With a summer of major Supreme Court Decisions, the overturn of the 1984 Chevron Doctrine will have the longest lasting effects of the recent cases. In Loper Bright Enterprises v. Raimondo (decided June 28, 2024) the Supreme Court found that the Court’s 1984 ruling in Chevron U.S.A. Inc v. NRDC violated the Administrative Procedure Act of 1946 (APA) and ultimately the framers’ intent for the U.S. Constitution. The decision will restore powers back to the Legislative and Judicial branches which the Executive had been granted under Chevron. The decision has been a goal for conservatives who seek to end the administrative state, a term used to describe the influence of unelected career bureaucrats in the Executive branch.

Those on the left are most likely to be upset by the decision, considering for example that 93% of all political contributions from U.S. State Department employees went to Democratic Party candidates and political action committees. Other agencies similarly display overwhelming ideological domination, a domination that has direct policy implications for the country.

The Chevron Doctrine was established during the Reagan administration by a six Justice majority (the three other justices did not participate in the case) and ruled in favor of Chevron and ultimately the EPA’s interpretation of a Congressional statute against environmental group NRDC’s original legal challenge to their interpretation. Debate focused on whether the EPA had authority to implement policy they created based off the ambiguous word “source,” as in source of emissions. The Court ruled that the Executive could engage in “policy decisions” and outlined a two-step guide for the judicial system to rule in administrative cases. First, is Congressional intent clear? If yes, then the course of action is clear. If intent is ambiguous, then the court looks at the Executive policy. If the policy interpretation is “reasonable”, the court defers in favor of the Executive even if the court itself interprets the law differently.

Loper Bright’s central issue was whether the National Marine Fisheries Service (NMFS) under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) could require Atlantic herring fisheries to pay the mandated government fishing monitor’s wage. This monitor’s job was to prevent overfishing. This government employee would cost $710 per day, according to the NMFS, reducing annual returns to the vessel owner by up to 20 percent, a significant financial burden. Several small fisheries combined forces to challenge the NMFS when they began charging the fisheries. In the past, the government paid the fishing observer’s fee but when the government ran out of money, the NMFS chose to charge the fisheries instead of turning to Congress for additional funding. The result was an overstep of government authority which would have crippled the small businesses.

Loper Bright is the “tombstone on Chevron no one can miss” as Justice Gorsuch says in his concurring opinion. The Court had taken steps to limit Chevron’s influence before Loper Bright: not applying the deference policy since 2016 and weakening the doctrine with cases like King v. Burwell (2015) and West Virginia v. EPA (2022). The final nail in Chevron is most important in that it clearly indicates to civil courts and to the Legislative and Executive Branches what the role of the Judicial Branch is, that “[i]t is emphatically the province and duty of the judicial department to say what the law is” (Marbury v. Madison). If case law stretching back to Marbury were not compelling enough, the 1946 APA clearly recognizes the authority of courts to decide “all relevant questions of law”.

Judicial Hubris

Some, like Justice Kagan bemoaned Loper Bright as “A rule of judicial humility giv[ing] way to a rule of judicial hubris.” The dissenting opinion is too focused on recent precedent. The courts have exercised judicial review since Marbury in the Loper Decision. The APA also explicitly authorized the courts to interpret the statutes in this way. Thus, Loper Bright restores policy-making power solely to the Legislative and Judicial Review to the Courts.

This does not entail activist judges will overtake the Executive. Precedent has already established that the courts treated Agency expertise with “respect” and “often treated agency determinations of fact as binding on the courts” (Loper Bright). Most likely, civil courts will continue to side with agencies in matters of ambiguity under a lower Skidmore Deference which says courts apply deference to the agency decision if they are persuasive. The precedents of respect, accepting facts, and applying this lower deference indicate that courts are not usurping any power–merely restoring balance.

For past cases where the Court ruled in favor of the government according to the Chevron doctrine, the Court made clear in Loper Bright that these cases would be protected by precedent, because even though a Court’s interpretation of law falls out of style, it does not invalidate these past decisions as a result.

What Happens Next

Some are concerned the overturn of Chevron will result in hundreds of new administrative law cases for civil courts to decide. As individuals and corporations realize the government will not prevail de facto in all such ambiguous cases, more lawsuits will be filed. In the short term, this could add many more cases to the docket.

But is this reality not a social benefit and the true role of the courts? If the Executive Branch is engaging in policymaking beyond the scope Congress intended, then the will of the people may not be represented. Yes, the President and many of his senior officials are appointed by the people or Congress, but the career bureaucrats within all the agencies work across administrations and are insulated from the public’s control by the federal unions. Many of these civil servants faithfully employ Congressional statutes as written. But in cases of ambiguity, such as in Loper Bright, it is more appropriate for the decision to come from Congress. Congress is more closely in tune with the current voice of the people than career bureaucrats. Therefore, it is the courts job to keep the Executive on track with Congress.

And for those suggesting judges are the same as the administrative bureaucracy, the Courts are constitutionally compelled to be experts on the law and interpret the law for the people. To allow the Executive to create policy in ambiguous cases and for the Courts to protect the Executive by default is not only undemocratic but un-American. It shatters the Newtonian laws of checks and balances and the thoughtful consideration for the rights of citizens. It is also most dangerous to liberty, with the Executive being the sole branch with authority to enforce its policy.

Again, courts will largely still side with the Executive in ambiguous cases (a reality which will curb the filing of hundreds of lawsuits). What matters is that minority rights and the democratic process are protected by not deferring to the Executive Branch. And, in important cases where the government does overstep, the courts will have an opportunity to restore power to the people.

Disappointment on the Right?

Unexpectedly, there might be some on the right with mixed feelings about the overturn of Chevron. After all, Chevron protected both Democrat and Republican administrations, and with Donald Trump as a favorite for re-election in 2024, he won’t be able to rely on Chevron himself.

Rather than disappointment, any true Conservative should be pleased by Loper Bright. Again, the courts most likely will still defer to agencies under Skidmore for most cases. What Loper Bright provides is a major victory and first step against those cases of government overreach and the hope of realizing a responsible Executive branch accountable to the people, not an elite entrenched Left. While in theory Chevron could have aided a strong Conservative president the worst-case scenario is after a strong Conservative President, an even stronger Progressive president enters immediately after and reverses the former’s work.

At this point the work of holding government accountable to the people must come through Congress to write more specific legislation (if at all possible). It must also come from the new President, most likely Donald Trump, to appoint Federal Judges who will hold the Administrative State accountable. Barring this, the only solutions to Agency overreach are systemic reform.

Loper Bright is an unequivocal victory and now it will be up to whoever takes the White House in 2024 to responsibly execute the will of the people in the four years ahead.