Much Ado About Chevron.

How much will actually change after Loper Bright?

Even when the Supreme Court changes course, the lower courts do not always fall in line. Old dogs do not like new tricks. The archetypal example is Heller. Even after the Supreme Court recognized an individual right to keep and bear arms, the lower courts actively resisted the case for more than a decade. Judges didn't like guns, and Heller didn't change much. Virtually every gun control measure survived scrutiny. Not much changed before and after Heller. Perhaps Bruen was a brief respite from that change, though Rahimi may usher in more of the same.

Will Loper Bright be treated in a similar fashion? For decades, lower-court judges have been content to defer to the executive branch on difficult legal questions. With Chevron gone, the courts will now have to find the "best" answer. (I kept thinking of Melania Trump's "Be Best" campaign). As the Chief Justice sees things, that task will involve independent legal judgment. But would we really know if a judge decides, as a matter of course, that the answer provided by the government is the "best" answer? After all, they have the requisite expertise. Call it Chevron in exile.

How much will change because of Loper Bright? I know there are many empirical studies about how often the government wins when Chevron is applied. Chief Justice Roberts scoffed at one such study by Kent Barnett, Christina Boyd, and Chris Walker:

Citing an empirical study, the dissent adds that Chevron "fosters agreement among judges." Post, at 28. It is hardly surprising that a study might find as much; Chevron's second step is supposed to be hospitable to agency interpretations. So when judges get there, they tend to agree that the agency wins. That proves nothing about the supposed ease or predictability of identifying ambiguity in the first place.

Perhaps in a few years, similar studies can be performed about the new regime. Has the executive branch's win-loss rate changed substantially? How much will Loper Bright really change things?

Comments

[Dan Schiavetta]

Gorsuch, in his opinion overturning Chevron, got the science wrong. He said “nitrous oxide” (laughing gas) when at issue was “nitrogen oxides” (components of smog). Nobody caught it until it was published and someone on the outside pointed it out and it was corrected.

He got the science wrong! And so did his clerks. They’re not scientists, and not only that, nobody could be bothered even to spend five minutes on Google to check it out. This is the post-Chevron world. Judges will reject regulations limiting smog because they’ll be thinking, “It’s only laughing gas!” And probably the industry "experts" opposing the EPA will do little to disabuse them. We know how that will turn out, with this 6 - 3 Court.

[Jazzizhep]

Isn't that the point? The science doesn't matter. It could have been nitrous oxide or nitrogen oxides. The question was "did the EPA have the statutory power to issue the regulation?" It is a legal question, not a scientific one.

I am reminded of Obama's carbon scheme. When he couldn't get congress to go along he simply had the EPA say CO2 was a pollutant. Is that how you want democracy to work?

It is well past the time judges decide the legality of a regulation without deferring to the agency--not that it will make much difference.

[Dan Schiavetta]

Did the EPA have the power to issue the regulation? If the statute says deal with smog, yes. If it said deal with an anesthetics, no. Statutes rarely specify the scientific answer to a problem.

[Jazzizhep]

If that were actually the issue in the decision, which we both know it is not, then each side gets to offer their scientific viewpoints and the judge decides without putting his thumb on the scale for government expansion. Are government scientists and/or administrative lawyers inherently superior to private practitioners (looks over notes regarding COVID)?

[Stephen Lathrop]

If SCOTUS remains determined to destruction-test separation of powers, what happens when the breaking point arrives? I don't think the Court's purported final power to say what the law is will long survive judicial presumption to assert a final power to say what the policy is.

SCOTUS justices may enjoy flying battle flags at home. They ought to stay mindful that the administrative branch is empowered to fire a shot across the bow.

[benji]

Might be a good reason to rein in the "administrative branch" then.