Mark Sherman, AP (“The Supreme Court weakens federal regulators, overturning decades-old Chevron decision“):
The Supreme Court on Friday upended a 40-year-old decision that made it easier for the federal government to regulate the environment, public health, workplace safety and consumer protections, delivering a far-reaching and potentially lucrative victory to business interests.
The court’s six conservative justices overturned the 1984 decision colloquially known as Chevron, long a target of conservatives who have been motivated as much by weakening the regulatory state as social issues including abortion. The liberal justices were in dissent.
The case was the conservative-dominated court’s clearest and boldest repudiation yet of what critics of regulation call the administrative state.
[…]
The heart of the Chevron decision says federal agencies should be allowed to fill in the details when laws aren’t crystal clear. Opponents of the decision argued that it gave power that should be wielded by judges to experts who work for the government.
“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” Chief Justice John Roberts wrote for the court.
[…]
Forty years ago, the Supreme Court ruled 6-0, with three justices recused, that judges should play a limited, deferential role when evaluating the actions of agency experts in a case brought by environmental groups to challenge a Reagan administration effort to ease regulation of power plants and factories.
“Judges are not experts in the field, and are not part of either political branch of government,” Justice John Paul Stevens wrote in 1984, explaining why they should play a limited role.
[…]
Roberts’ opinion took direct aim at what Stevens wrote 40 years ago. “That depends, of course, on what the ‘field’ is. If it is legal interpretation, that has been, ‘emphatically,’ ‘the province and duty of the judicial department’ for at least 221 years,” Roberts wrote, quoting from the Marbury v. Madison decision that established the Supreme Court as the last word in interpreting laws and the Constitution.
Kagan, though, said that in getting rid of Chevron “gives courts control over matters they know nothing about.” She read a summary of her dissent aloud in the courtroom to emphasize her disagreement with the majority.
Adam Liptak, NYT (“Supreme Court Imperils an Array of Federal Rules“) adds:
Overturning the Chevron deference precedent is just the latest in a series of ringing blows the Supreme Court’s Republican-appointed conservative bloc has delivered to the ability of regulatory agencies to impose rules on powerful business interests, advancing a longstanding goal of the conservative legal movement and the donors who have funded its rise.
Just yesterday, the majority struck down the ability of agencies to enforce their rules via in-house tribunals before technical-expert administrative judges. Instead, it ruled, agencies must sue accused malefactors in federal court before juries.
In recent years, the Republican majority has also made it easier to sue agencies and get their rules struck down, including by advancing the so-called major questions doctrine. Under that idea, courts should nullify economically significant regulations if judges decided Congress was not clear enough in authorizing them.
[…]
While overturning Chevron is now the capstone victory for the conservative legal movement’s assault on the administrative state, it may not be the end of the story. More extreme opponents of regulation hope the court will someday embrace a sweeping version of the so-called nondelegation doctrine.
Under that vision, the Constitution does not allow Congress to delegate any of its legislative authority to executive branch agencies. If so, all regulations should be struck down because the only way society can impose a legally binding rule on business interests is if Congress manages to specifically enact one via statute.
SCOTUSBlog’s Amy Howe (“Supreme Court strikes down Chevron, curtailing power of federal agencies“) adds:
When the Supreme Court first issued its decision in the Chevron case more than 40 years ago, the decision was not necessarily regarded as a particularly consequential one. But in the years since then, it became one of the most important rulings on federal administrative law, cited by federal courts more than 18,000 times.
Although the Chevron decision – which upheld the Reagan-era Environmental Protection Agency’s interpretation of the Clean Air Act that eased regulation of emissions – was generally hailed by conservatives at the time, the ruling eventually became a target for those seeking to curtail the administrative state, who argued that courts, rather than federal agencies, should say what the law means.
[…]
Chevron deference, Roberts explained in his opinion for the court on Friday, is inconsistent with the Administrative Procedure Act, a federal law that sets out the procedures that federal agencies must follow as well as instructions for courts to review actions by those agencies. The APA, Roberts noted, directs courts to “decide legal questions by applying their own judgment” and therefore “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference. Under the APA,” Roberts concluded, “it thus remains the responsibility of the court to decide whether the law means what the agency says.”
Roberts rejected any suggestion that agencies, rather than courts, are better suited to determine what ambiguities in a federal law might mean. Even when those ambiguities involve technical or scientific questions that fall within an agency’s area of expertise, Roberts emphasized, “Congress expects courts to handle technical statutory questions” – and courts also have the benefit of briefing from the parties and “friends of the court.”
Moreover, Roberts observed, even if courts should not defer to an agency’s interpretation of an ambiguous statute that it administers, it can consider that interpretation when it falls within the agency’s purview, a doctrine known as Skidmore deference.
Stare decisis – the principle that courts should generally adhere to their past cases – does not provide a reason to uphold the Chevron doctrine, Roberts continued. Roberts characterized the doctrine as “unworkable,” one of the criteria for overruling prior precedent, because it is so difficult to determine whether a statute is indeed ambiguous.
And because of the Supreme Court’s “constant tinkering with” the doctrine, along with its failure to rely on the doctrine in eight years, there is no reason for anyone to rely on Chevron. To the contrary, Roberts suggested, the Chevron doctrine “allows agencies to change course even when Congress has given them no power to do so.”
Roberts indicated that the court’s decision on Friday would not require earlier cases that relied on Chevron to be overturned. “Mere reliance on Chevron cannot constitute a ‘special justification’ for overruling” a decision upholding agency action, “because to say a precedent relied on Chevron is, at best, just an argument that the precedent was wrongly decided” – which is not enough, standing alone, to overrule the case.
[…]
Justice Clarence Thomas penned a brief concurring opinion in which he emphasized that the Chevron doctrine was inconsistent not only with the Administrative Procedure Act but also with the Constitution’s division of power among the three branches of government. The Chevron doctrine, he argued, requires judges to give up their constitutional power to exercise their independent judgment, and it allows the executive branch to “exercise powers not given to it.”
Justice Neil Gorsuch filed a longer (33-page) concurring opinion in which he emphasized that “[t]oday, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretative rules that have guided federal courts since the Nation’s founding.” He sought to downplay the impact of Friday’s ruling, contending that “all today’s decision means is that, going forward, federal courts will do exactly as this Court has since 2016, exactly as it did before the mid-1980s, and exactly as it had done since the founding: resolve cases and controversies without any systemic bias in the government’s favor.”
Kagan, who read a summary of her dissent from the bench, was sharply critical of the decision to overrule the Chevron doctrine. Congress often enacts regulatory laws that contain ambiguities and gaps, she observed, which agencies must then interpet. The question, as she framed it, is “[w]ho decides which of the possible readings” of those laws should prevail?
For 40 years, she stressed, the answer to that question has generally been “the agency’s,” with good reason: Agencies are more likely to have the technical and scientific expertise to make such decisions. She emphasized the deep roots that Chevron has had in the U.S. legal system for decades. “It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
While I took a graduate Administrative Law course way back in 1988, when Chevron was new, this isn’t an issue I’ve spent much time thinking about. The basic concept underlying Stevens’ ruling—that agency professionals have specialized expertise and deserve deference from judges lacking said expertise—is unassailable. Indeed, Congress recognized this decades before Chevron, creating a whole class of Administrative Law Judges under the Administrative Procedures Act of 1946 precisely because it was understood, even then, that many agency decisions are too complicated to be reviewed by ordinary judges and instead required specialists as overseers.
Many federal administrative agencies have numerous administrative law judges. The Social Security Administration sees roughly 700,000 cases each year, necessitating a roster of 1,400 ALJs. Other federal agencies with ALJs include the Department of Labor, the Department of the Interior, the Department of Agriculture, and the Drug Enforcement Agency.
Most people consider ALJs to be part of the executive branch as opposed to the judicial branch. Despite this, the APA imbues ALJs with substantial decisional independence and provides them with immunity from any liability stemming from their judicial acts. Contrary to popular belief, ALJs operate independently from the agencies that are involved in particular disputes. If the Department of Defense is a party to an administrative proceeding, the agency may not have any ex parte communications with the ALJ or influence the ALJ’s decision by improper means. The APA includes many provisions to ensure that ALJs are not pressured by other parties or agency officials.
In general, ALJs are afforded the same scope of authority as traditional courtroom judges. One major difference between ALJs and traditional judges is that ALJs serve as both the judge and trier of fact. This is known as a bench trial. In civil court, the parties sometimes have the option of choosing to forgo a jury and have the judge weigh the factual evidence that the parties provide. During an administrative hearing, however, the ALJ will always weigh the evidence and make factual determinations.
This also means that agency decisions aren’t simply products of bureaucratic fiat. They are—and have been for going on eighty years now—subject to judicial scrutiny. It’s simply by judges who are specialists in the laws applicable to a given agency.
At the same time, it strikes me as possible that Chevron went too far in that deference. It’s one thing to say that the courts should operate under the presumption that the agencies are acting in the best interests of their Congressionally-delegated mission. It’s quite another to say that their decisions are not subject to scrutiny by the Supreme Court.
That said, I have three fears.
First, as Kagan alludes to in her dissent, that the result of this is an avalanche of lawsuits that paralyze agency business. While I don’t think agencies should be the final arbiters of their decisions with citizens having no recourse, having every decision subject to a lawsuit would be crippling, both in terms of manpower and money.
Second, this is a further instance of the Roberts Court eschewing stare decisis. While it’s certainly not an absolute principle—most readers will agree that Brown’s overturning of the outrageous Separate But Equal doctrine created by Plessy was a good thing—deference to past decisions is a cornerstone of a common law system. This further signals that the Supreme Court is simply a political institution, acting on the preferences of partisan appointees rather than merely interpreting the law.
Third, while I have no strong opinion on whether ending Chevron deference is a good thing, we’re a step closer to Thomas’ desire to destroy the administrative state. While there is certainly a good faith argument to be made that the degree of delegation of Congressional power to Executive agencies that has evolved over the last century or so violates the intent of the Framers of 1787, there is simply no other way to run a continental superpower of 330 million people. Even magically removing the bitter partisan polarization that thas crippled it over the past two decades or so, Congress simply couldn’t perform the regulatory functions of the agencies. It lacks the expertise, manpower, and feedback mechanisms to micro-legislate.
