Chevron Matters— But Not as Much as You Might Think

Overruling Chevron won't gut the administrative state or even severely constrain it. But it could help strengthen the rule of law.

Today the Supreme Court decided to hear Loper Bright Enterprises v. Raimando, a case that raises the prospect that the Court might overrule  Chevron v. Natural Resources Defense Council, which requires federal judges to defer to administrative agencies' interpretations of federal laws, so long as Congress has not addressed the issue in question, and the agency's view is "reasonable." Some legal commentators are, depending on their ideology, excited or appalled by the prospect that Chevron might be overruled. Advocates of reversal hope and critics fear that the result would be severe constraints on the power of federal regulatory agencies, and perhaps the administrative state generally.

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. I explained why in two previous posts, (see here and here). To briefly summarize, my reasons for skepticism are 1) we often forget that the US had a large and powerful federal administrative state even before Chevron was decided in 1984, 2) states that have abolished Chevron-like judicial deference to administrative agencies (or never had it in the first place) don't seem to have significantly weaker executive agencies or significantly lower levels of regulation, as a result, 3) a great deal of informal judicial deference to agencies is likely to continue, even in the absence of Chevron, and 4) Chevron sometimes protects deregulatory policies as well as those that increase regulation (it also sometimes protects various right-wing policies that increase regulation, in an age where pro-regulation  "national conservatives" are increasingly influential on the right); the Chevron decision itself protected a relatively deregulatory environmental policy by the Reagan administration.

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:

Ending Chevron deference would not gut the administrative state…. It would, however, have some important beneficial effects. It would put an end to what then-Judge—and future liberal Supreme Court justice—Stephen Breyer, writing in 1986, called an "abdication of judicial responsibility…."  The Constitution gives judges, not agency bureaucrats, the power to interpret federal law in cases that come before the courts….

The elimination of Chevron would also increase the stability of legal rules, and make it harder for administrations to play fast and loose with the law. As [Justice] Gorsuch pointed out in a well-known opinion he wrote as a lower court judge, Chevron deference often enables an agency to "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." When the meaning of federal law shifts with the political agendas of succeeding administrations, that makes a mockery of the rule of law and undermines the stability that businesses, state governments, and ordinary citizens depend on to organize their affairs.

Of course, reports of Chevron's demise might well prove premature. I am skeptical there really are five votes on the Court to overrule Chevron completely. Assuming none of the liberal justices will support the idea, pushing it through would require five conservative votes. That's true despite the fact that liberal Justice Ketanji Brown Jackson is recused from the case. A 4-4 split on the Court would not result in a binding precedent overturning Chevron, or - most likely - any kind of binding precedent at all.

I see little reason to think Chief Justice John Roberts leans towards reversal. The same goes for Justice Alito, who in 2018 chided the Court for failing to apply Chevron more rigorously. Justices Kavanaugh and Barrett might also prefer curbing Chevron to complete reversal. It's hard to know for sure. Only Gorsuch and Thomas are clearly committed to reversal, and they need to add three votes to make it happen.

On balance, I believe Jonathan Adler is probably right to think the Court is more likely to further limit Chevron than to reverse it completely. But if I'm wrong about that and Chevron does go on the chopping block, the impact will not be as great as many might think.

Adler is also right to point out that Chevron rarely constrains the Supreme Court itself in recent years. They routinely refuse to defer to agencies, or even just ignore Chevron entirely. But the Chevron doctrine still matters much more in the lower courts, which is where the overwhelming majority of cases get decided. While it isn't the key to the survival of the administrative state, it does give the executive branch incrementally broader discretion than it would enjoy otherwise.