Draining the Swamp: Supreme Court Ends “Chevron Deference”

July 4th naturally occasions an uptick in reading the Declaration of Independence, whose recitation of transgressions by the king includes the following: “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.”  

What we now derisively label the “Swamp,” the “Deep State” or some other damning term, bureaucratic overreach and harassment ranked high among the Founding Fathers’ reasons for breaking from Great Britain after nearly two centuries.  

In the two centuries since, however, administrative state overreach of that same sort has steadily increased under our own government.  

Indeed, growth of the bureaucratic leviathan offers perhaps the most defining characteristic of American governance over the past century. Ever-enlarging administrative agencies staffed by overzealous and overpaid technocrats who pay no price for whatever policy errors they commit, and who remain effectively immune from termination, impose their institutional agendas with near impunity. Mere acronyms such as IRS, EPA, FCC, FTC and ATF strike fear into everyday Americans, who sometimes find themselves subjected to criminal prosecution for regulatory transgressions that they didn’t even know existed.  

That fearsome dynamic accelerated following the 1984 United States Supreme Court decision of Chevron v. Natural Resources Defense Council. That ruling created the notorious “Chevron Deference” doctrine requiring widespread deference to federal agency interpretations of laws those same agencies administer, even if courts interpreted those underlying laws quite differently.  

It’s therefore poetically just that in the days leading up to July 4 this year, the Supreme Court issued a highly anticipated ruling in Loper Bright Enterprises v. Raimondo that overrules the Chevron decision and corrects a four-decade mistake that encouraged the same sort of bureaucratic abuse that led the Founders to declare independence in the first place.  

For two centuries prior to Chevron, the judicial branch interpreted the meaning of laws without inherently favoring either side. Under our Constitution, Congress was empowered to pass laws, presidents and their executive agencies were empowered to enforce them and courts were empowered to interpret them.  

Beginning in the mid-1980s following Chevron, however, courts embarked upon a radically different approach by deferring to however executive agency personnel interpreted federal statutes. That not only upended our constitutional separation of powers as devised by the Founders, it amplified the power of executive branch bureaucrats to enforce laws according to their ideological aims. As Justice Neil Gorsuch emphasized in his concurring opinion, Chevron Deference required courts to “place a finger on the scales of justice in favor of the most powerful litigants, the federal government.” In his words, Chevron meant that, “The reasonable bureaucrat always wins.”  

“Along the way,” Gorsuch added, “Chevron Deference guarantees systemic bias in favor of whichever political party holds the levers of executive power.”  

To illustrate that defect in Chevron Deference, Justice Gorsuch highlighted “Net Neutrality,” the disastrous far-left crusade by the Obama and now Biden administrations to declare internet service a “public utility” subject to broad federal control:   

How bad is the problem? Take just one example. Brand X concerned a law regulating broadband internet services. There, the Court upheld an agency rule adopted by the administration of George W. Bush because it was premised on a “reasonable” interpretation of the statute. Later, President Barack Obama’s administration rescinded the rule and replaced it with another. Later still, during President Donald J. Trump’s administration, officials replaced that rule with a different one, all before President Joseph R. Biden, Jr.’s administration declared its intention to reverse course for yet a fourth time. Each time, the government claimed its new rule was just as “reasonable” as the last.  

With its Loper decision, the Court finally put an end to Chevron Deference. The majority noted that courts prior to the mid-1980s were perfectly able to “make their way intelligently through technical statutory disputes.” Accordingly, again quoting Justice Gorsuch who captured it best, all that changes is that courts will resume doing what they did since the founding until Chevron arrived in the mid-1980s, “resolve cases and controversies without any systemic bias in the government’s favor.”  

For two centuries, even through the hyper-regulatory New Deal, courts did not robotically defer to executive branch agencies on questions of law in that way. Sky-is-falling jeremiads from leftists who desire an overactive bureaucratic state should therefore be dismissed out of hand.  

Moreover, the Court’s ruling is already paying off. Last week, just days after the decision, a federal district court cited Loper in blocking an indefensible attempt by Biden’s Federal Trade Commission (FTC) to impose a nationwide ban on voluntary non-compete agreements.  

The Supreme Court’s decision constitutes an important defeat for the overzealous administrative state, and a vindication of the Founders’ constitutional vision, for which we should again be thankful.

Timothy H. Lee is Senior Vice President of legal and public affairs at the Center for Individual Freedom.

Reprinted with Permission from CFIF.org – By Timothy H. Lee

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.