The Supreme Court's move to end 'Chevron Deference' won't be as effective as many think.
Recent Supreme Court decisions in Loper Bright v. Raimondo and Relentless, Inc. v. Department of Commerce have overturned the long-standing judicial principle of “Chevron deference,” marking a significant shift in the balance of power between federal regulatory agencies and the judiciary. While this change has been celebrated by many on the political right as a victory against administrative overreach, the implications are likely to be more nuanced than some commentators realize.
To understand the significance of this development, one must first grasp how the Chevron doctrine came about in the first place. This judicial principle, established in the 1984 case Chevron U.S.A. v. Natural Resources Defense Council, was designed to address a perennial problem in American governance, namely the tendency of Congress to write vague instructions to executive agencies. When legislative language is ambiguous, someone must interpret how much leeway to grant regulatory agencies when they craft regulations that implement Congressional statutes.
The Chevron approach provided a predictable answer to this dilemma through a two-step test. First, judges would determine whether the statute in question was ambiguous. If so, they would next assess whether the agency’s interpretation of the statute was reasonable. If both conditions were met, courts would defer to the agency’s interpretation, effectively granting regulatory bodies wide latitude to define the scope of their own power.
The recent Supreme Court rulings have now dismantled this framework, and the consequences are likely to take time to be felt. Perhaps most immediately, the end of Chevron deference should curb more extreme examples of egregious agency overreach, as exemplified by the National Marine Fisheries Service’s unjustified mandate forcing small fishing businesses to bear the cost of onboard federal observers. This was the issue at the center of the recent Supreme Court cases.
We may also see an increase in legal challenges to regulations. With Chevron no longer serving as a shield, agencies will face a higher bar when defending their interpretations of statutory delegations of authority. Alternative readings of the law may now carry more weight in court, potentially undermining regulatory efforts across a wide range of policy areas.
The result is likely to be a relative empowerment of the judiciary. Judges, rather than regulatory agencies, will now have the final say on what the law means and how it should be applied. This transfer of power from the executive branch to the courts is no small matter; however, it would be a mistake to view this development solely as a victory for the critics of regulation.
Just as it will be easier to challenge new regulations that constrain business activity, the end of Chevron deference will facilitate legal attacks on deregulatory actions. Both Democratic and Republican administrations will face a steeper climb when implementing their preferred policies. In this sense, the true winner may be the status quo, as change of any kind becomes more difficult to achieve.
Moreover, there are practical considerations that may disproportionately affect Republican administrations. Regulatory agency staff and attorneys tend to lean Democratic, creating a talent deficit for conservative administrations. This imbalance could make it more challenging for Republican-led agencies to craft legal arguments capable of withstanding the intensified judicial scrutiny.
It’s also worth noting that conservative jurists, including the late Justice Antonin Scalia, were once among the staunchest defenders of the Chevron doctrine. They saw it as a means of limiting the influence of activist judges. While the pendulum may have swung too far toward empowering federal agencies under Chevron, there’s a risk that we’re now overcorrecting in the opposite direction—toward granting too much authority to judges.
Perhaps most concerning is the lack of a clear alternative framework to replace Chevron. If we return to an era of judicial activism, where courts feel emboldened to craft precedents more-or-less out of whole cloth, we may find ourselves longing for the relative predictability of the Chevron era.
Some optimists believe that the end of Chevron deference might invigorate Congress to take a more active role in policymaking, by, for example, writing clearer, more specific statutes. However, this hope likely overestimates the willingness of legislators to change long-standing practices. The incentives that lead to vague laws–including the need for compromise and the desire to punt difficult decisions to other branches–remain firmly in place.
That said, post-Chevron, the courts will now have to give more attention to congressional text, increasing the influence of Congress indirectly even if congressional behavior goes unchanged.
Still, the most significant changes are likely to occur in the interplay between the executive and judicial branches. Yet even here, the impact may be less dramatic than some anticipate. Judges, like members of Congress, often prefer to avoid making difficult decisions that could lead to blowback later. They may also be wary of overwhelming the court system with an influx of regulatory challenges. As a result, we may see the emergence of new forms of deference, based on logic distinct from Chevron but serving a similar function.
In other words, the fundamental equilibrium of our regulatory system may prove more resilient than many expect. Institutional incentives–such as to avoid blame or manage workloads–tend to exert a stronger influence than abstract legal philosophies. This is simply human nature, and no Supreme Court decision can override these basic realities.
As we navigate the post-Chevron landscape, the true test will be whether our judicial system can place more appropriate limits on agency power without itself growing more overtly politicized. Only time will tell if ending Chevron deference represents a step forward in governance or merely a shift from one set of problems to another.
