Overturning Chevron May Prove Pyrrhic

The Supreme Court’s term has ended, as it often does, with a bang—or series of bangs. The Court set off legal fireworks on many fronts, but the most enduringly significant decision handed down is probably Loper v. Raimondo. In that case, the Court overruled its 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, which had established the legal doctrine that came to be known as “Chevron deference.” Under this doctrine, courts were required to defer to a federal administrative agency’s interpretation of the statutory law it enforces whenever a statute is sufficiently ambiguous—even if a court might have interpreted the statute differently. 

This effectively ceded enormous amounts of power to the administrative state, leaving ordinary citizens with little recourse to challenge the legal interpretations of the countless agencies that wield enormous power over their lives and livelihoods. Given the size and scope of the modern administrative state, this directly undermines the fundamental principle of republican government: consent of the governed. 

At issue in Loper was whether or not the Commerce Department’s National Marine Fisheries Service had overstepped its legal authority in imposing significant monitoring costs on fishermen. The Biden administration defended deference to the regulating agency on the basis of the agency’s purported expertise. The fishermen, by contrast, argued that Congress has been incentivized by Chevron deference to do far less than is constitutionally required, instead delegating to administrative agencies the power to rule by fiat rather than law. The Court accepted this argument and overturned Chevron. It did so partly on the basis of the inherent judicial authority to interpret laws in the “Cases” and “Controversies” explicitly contemplated by the Constitution, and partly on the basis of the 1946 Administrative Procedure Act (APA), which was passed to check the “zeal” of New Deal administrative agencies that led them to “excesses” beyond the four corners of the laws that gave them life. Chevron deference, the Court said in Loper, was directly contrary to the APA. Statutory ambiguities can no longer be read as implicit and broad delegations to administrative agencies.

According to Chief Justice John Roberts, “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority….courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.” 

In dissent, Associate Justice Elena Kagan asked, “Who should give content to a statute when Congress’s instructions have run out? Should it be a court? Or should it be the agency Congress has charged with administering the statute? The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness.”

In hemming in the relatively unchecked power of federal bureaucrats, the decision in Loper has long been on the wish list of conservatives, classical liberals, and libertarians alike. And, indeed, it’s not hard to imagine benefits flowing directly from the decision, in the form of heightened judicial oversight of the administrative state. But it’s equally easy to imagine the decision delivering far less than many hope, and even masking and ultimately accelerating progressivism’s long march through our institutions. Conservatives must be careful what they wish for. 

Few know the story of how we got to Chevron and why many conservatives, including the likes of the late Associate Justice Antonin Scalia, initially embraced it. Since the advent of the modern administrative state, presidents, Congress, the courts, and agencies themselves have tussled over who controls it, and the extent to which it must be accountable to the American people. FDR himself, contrary to many early progressives, came to have doubts about the independence of “the headless fourth branch of government.” 

As the 20th century wore on, both liberals and conservatives increasingly agreed on the necessity to control this fourth branch, albeit for different reasons. By the 1960s, liberals became suspicious of what they saw as a captured technocratic state operating without popular or judicial controls. They sought to enable interest groups, acting through courts, to control the levers of administrative power in pursuit of a variety of newly-fashioned social, political, economic, and environmental objectives. They often sued not simply to stop government action, but to demand it, in accordance with what they claimed were statutory objectives or constitutional mandates. In this endeavor, they relied on increasingly sympathetic federal courts staffed by progressive jurists to do their bidding. Through a variety of mechanisms, including loosened standing requirements and novel due process rulings, courts began to direct the organs of the administrative state to pursue progressive policy objectives. 

Meanwhile, the Nixon administration, equally suspicious of administrative independence, sought to re-politicize the massive New Deal/Great Society federal Leviathan. Nixon’s goal was to hold it accountable, through the office of the president, to the wishes of the American people. He was often stymied by the shift in the balance of power away from executive agencies to even more unaccountable federal courts. In a sense, both liberals and conservatives attempted to affect what they understood to be a “democratization” of the administrative state, each having lost the early progressives’ faith in apolitical “expertise.”

By the time the Chevron case was decided during the Reagan administration, many conservatives were fully on board with having courts step back from meddling in what they understood to be executive affairs. Progressive courts had hardly proved to be allies in reining in non-consensual administrative power. 

As Associate Justice Neil Gorsuch points out in a footnote to Loper, 

It should be recalled that, when Justice Scalia launched the Chevron revolution, there were many judges who “abhor[red] . . . ‘plain meaning’” and preferred instead to elevate “legislative history” and their own curated accounts of a law’s “purpose[s]” over enacted statutory text…Chevron, he predicted, would provide a new guardrail against that practice…As the Justice’s later writings show, he had the right diagnosis, just the wrong cure. The answer for judges eliding statutory terms is not deference to agencies that may seek to do the same, but a demand that all return to a more faithful adherence to the written law. That was, of course, another project Justice Scalia championed. And as we like to say, “we’re all textualists now.”

But are we all textualists now? Conservatives should be cautious about embracing the shift to judicial superintendence over administration that Loper demands. It might well have the effect of preventing salutary politicization of such decision making by future conservative administrations confronting an even more progressive judiciary. One of the effects of overturning Chevron will be to shift even more power toward lawyers within the administrative state, rather than political officers. Over much of the last century, courts have routinely proved to be as non-deferential to conservative preferences as they have to the text of the Constitution itself.

As conservatives should know—though many have forgotten the lesson—the most important question is not who wields power, but how much power is wielded. The goal of conservatives should be to reduce the size and scope of unaccountable bureaucracy, not celebrate who or what controls it. The fat lady that is the administrative state has not yet begun to sing.

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