Boomerang
The Chevron Deference is no more. Now what?
“Governments tend not to solve problems, only to rearrange them.” – Ronald Reagan
Ronald Reagan swept into office in a landslide on a platform of reining in the powers of the federal government, famously quipping, “Government is not the solution to our problem; government is the problem.” True to his campaign promises, Reagan installed leaders in various federal agencies that took a far less ambitious view of their authority, including the Environmental Protection Agency (EPA). Environmentalists were predictably outraged, and when the EPA declined to take an extreme interpretation of its enforcement powers as written in the Clean Air Act, the National Resources Defense Council (NRDC) sued. The case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., made its way to the US Supreme Court, which famously ruled in the EPA’s favor. After Chevron, courts were instructed that, when laws passed by Congress were ambiguous, deference should be given to the federal agencies, giving Reagan’s appointees the final say.
In the decades that followed, Chevron would prove to be a Pyrrhic victory for conservatives. Newly empowered with no less authority than the Supreme Court, liberal bureaucrats flooded the growing federal administrative blob. Instead of limiting the influence of unelected federal employees, Chevron adorned them with near-authoritarian clout, leaving the courts handcuffed to keep them in check. Like a spreading cancer resistant to treatment, the number of final rules listed in the US Federal Register has predictably ballooned.
Three years after Chevron was decided, Reagan nominated Robert Bork for the position of Associate Justice of the Supreme Court. While such nominations are constitutionally required to receive the consent of the US Senate, the desires of the sitting president were, at the time, generally accepted. (A year prior to Bork’s nomination, the deeply conservative Antonin Scalia was unanimously approved to ascend to the court in a 98-0 vote.) In the rare instances in which nominees were rejected or withdrawn, the tone and substance of the debate remained staid and professional.
Famously, Bork received a rather different treatment, and the ugly mess that ensued during his nomination hearing is widely considered to be a turning point in the history of the US judiciary system. Now, practically every federally appointed judgeship is fought in a full-blown, deeply partisan brawl.
As with the Chevron decision that favored its contemporary conservatives, one wonders whether the Bork escalation was worth it in the long run for the liberals that cheered it. With the help of decades of work by the Federalist Society and crafty yet cynical parliamentary maneuvers by Republican Senate Leader Mitch McConnell, the Supreme Court is now comprised of a powerful 6-3 conservative majority, an important structural advantage that could last decades. This was accomplished despite the fact that the Democrats have occupied the Oval Office for 20 of the past 36 years.
The question of deference—be it in the interpretation of Congressional intent or the selection of Supreme Court justices—is nothing more than a question of raw power, of course, and fundamental shifts in who gets to decide things often bend the arc of societal development. Last week, the US appeared to undergo just such a shift when these two narratives converged in a historic decision handed down by the conservative majority. We turn to the highly concerned New York Times for one interpretation of the development:
“The Supreme Court swept aside a longstanding legal precedent on Friday, reducing the power of executive agencies and endangering countless regulations by transferring power from the executive branch to Congress and the courts. Chief Justice John G. Roberts Jr., writing for the majority, said that ‘agencies have no special competence’ and that judges should determine the meaning of federal laws.
The precedent, Chevron v. Natural Resources Defense Council, is one of the most cited in American law, underpinning 70 Supreme Court decisions and roughly 17,000 in the lower courts. Critics of regulatory authority immediately hailed the decision, suggesting it could open new avenues to challenge federal rules in areas ranging from abortion pills to the environment.”
What are the near-term impacts of this decision? The early celebrations of conservatives and expressions of lament by liberals may not be entirely warranted. We suspect this development will boomerang back on its architects in ways they might soon come to regret. Let’s take a look at the practicalities of what comes next.