AMAC Exclusive – By Garrison Grisedale
In early May, the Supreme Court decided that it will reconsider the longstanding precedent known as the Chevron doctrine, or Chevron deference, in its next term. If the Court’s conservative majority indeed overturns the nearly 40-year-old decision, it would be a major victory for constitutionalism and deliver a major blow to the creeping power of unelected bureaucrats over the lives of everyday Americans.
The Chevron doctrine began with the 1984 Supreme Court case Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. and essentially requires courts to defer to an executive agency’s interpretations of congressional statutory ambiguities. In other words, it requires judges to give agency officials the benefit of the doubt.
This means that agency administrators — rather than courts or elected officials — can create, enforce, and interpret agency rules and regulations as they see fit, thus circumventing our constitutional system of representative government and placing far too much power in the hands of unelected federal bureaucrats. Add in the fact that the overwhelming majority of these bureaucrats are non-political career employees who remain in office regardless of the president (and are nearly impossible to fire), and Chevron deference has in effect created a fourth branch of government.
As a result, Chevron threatens the very separation of powers that is integral to our Constitution. Article I of the U.S. Constitution gives the Congress the authority to legislate; Article II vests the executive branch with the duty to enforce the laws; and Article III extends the power to interpret the law to the federal judiciary. Under Chevron, Congress has abdicated its constitutional duty to create legislation by granting the administrative state the capacity to define the details of the legislation it passes.
Consider Chevron’s concentration of powers in the hands of agency officials in light of James Madison’s words in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may just be pronounced the very definition of tyranny.”
Luckily, the Chevron doctrine may now be in jeopardy.
The Supreme Court has agreed to hear Loper Bright Enterprises v. Raimondo in its next term, which involves the constitutionality of fishing regulations. The National Marine Fisheries Service (NMFS) regulation in question in the case requires small herring fishing boats to allow an extra person onboard to monitor their compliance with federal regulations, and to pay their salary of about $700 per day, which will reduce their profits by an estimated 20 percent. Loper Bright Enterprises is a fishing company in New England which, joined by other fisheries, sued Secretary of Commerce Gina Raimondo in June 2021 to challenge the NMFS’ authority to enforce these cumbersome regulations.
While the Supreme Court declined to consider the issue of the specific regulatory burdens in question, it did agree to hear the case to decide on the more fundamental issue of deference to agency interpretation at the heart of Chevron.
Several of the Supreme Court’s conservative justices have already signaled their desire to overturn, or strictly limit, the Chevron doctrine. In a 2016 opinion for the 10th U.S. Circuit Court of Appeals, then-Judge Neil Gorsuch wrote that Chevron deference and other similar Supreme Court holdings have permitted “executive branch agencies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
Justice Clarence Thomas has also shared the similar concern that the Chevron doctrine “potentially unconstitutionally” delegates power from the judiciary and legislative branches to the executive branch. Justice Brett Kavanaugh, meanwhile, has called for the “reigning in” of Chevron doctrine to make it less “indeterminate and antithetical to the neutral, impartial rule of law.”
When the Supreme Court considers Loper Bright Enterprises v. Raimondo in October, it will have an opportunity to end Chevron and restore the proper constitutional order to agency law.
Under our system of republican self-government, the Constitution vests the legislative branch with the most authority because these representatives, who face regular elections, are therefore most accountable to the American people.
Unelected bureaucrats in the executive branch face no such accountability mechanisms, and therefore should not wield such enormous power under a constitutional framework. Furthermore, as the executive branch has become more nakedly dominated by the political left, Chevron subsequently becomes less of a mandate for deference to agency subject matter expertise on technical issues, and more of an empowerment of administrative bureaucrats to influence decidedly political questions.
In short, the Chevron doctrine turns our constitutional order on its head by granting unelected bureaucrats in Washington the authority to interpret federal statutes when Congress has been ambiguous. The Supreme Court has long avoided the issue, but now it has an opportunity to deliver a historic victory for constitutionalism.
Garrison Grisedale is a Policy Analyst at the American Cornerstone Institute.