AMAC Exclusive – By Katie Sullivan
The Supreme Court looks set to finally rein in the power of unelected federal bureaucrats and restore the Constitution’s separation of powers between the executive and legislative branches.
Two cases the Court will rule on this term, Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo could overturn the precedent set in Chevron v. Natural Resources Defense Council (1984) – a ruling that many legal scholars view as the origin point for the unchecked growth of federal agencies.
In order to understand the significance of the Relentless and Loper cases, it is necessary to first understand the history behind Chevron.
In that case, the Chevron Corporation challenged the Environmental Protection Agency’s (EPA) interpretation of the Clean Air Act. The EPA had issued regulations allowing states to adopt less stringent emission controls for certain industrial facilities if they met specific criteria. The Natural Resources Defense Council (NRDC) argued that the EPA’s interpretation was incorrect and that the Clean Air Act required more stringent controls.
In essence, the question at the heart of Chevron was about the leeway that federal agencies should have when enforcing laws passed by Congress.
To answer that question, the Supreme Court, in a landmark decision authored by Justice John Paul Stevens, articulated a two-step framework for reviewing agency interpretations of statutes.
First, a court must determine if the statutory language (or the text of the law) in question is ambiguous. If the statute is not ambiguous, the court is to apply the plain meaning of the statute when determining if a federal agency acted within its constitutional authority.
If a court determines the statutory language in question is ambiguous using all interpretive means available, they must move on to step two, which requires the court to defer to the involved agency’s reasonable interpretation of the statute. This means the court does not decide what the statute means or apply its own definitions when an agency is involved. Instead, the court must uphold the bureaucratic agencies’ determination of the meaning of statutes enacted by Congress.
The ruling established the term “Chevron Deference,” which has had a profound impact on administrative law. Since being decided in 1984, the case has been cited in approximately 15,000 judicial decisions, making it one of the most cited Supreme Court decisions of all time.
Ironically, when Chevron was decided, many conservatives touted it as a win, claiming it prevented unelected federal judges from making decisions about the meaning of statutory language and instead left interpretation up to those with expertise in the applicable field – ostensibly federal bureaucrats.
But it soon became clear that Chevron Deference would become a powerful weapon for the administrative state to expand its own power – primarily because determining whether a statute is “ambiguous” is a subjective exercise. Throughout oral arguments in the Relentless and Loper cases, for instance, lawyers for the fisheries have provided example after example showing some circuit court judges finding ambiguity in statutory language with alarming frequency, while other judges have found the same language to be unambiguous.
As long as federal agencies can ensure their case is heard in a friendly court, Chevron Deference practically ensures that their interpretation of federal law – no matter how divorced it was from the actual language of the law – would win out. According to a Michigan Law Review article from 2016 which reviewed more than 1,500 cases, “the circuit courts overall upheld 71% of [agency] interpretations and applied Chevron deference 77% of the time.”
The specific issue in Relentless and Loper is whether the Magnuson-Stevens Act passed in 1976, authorizes the National Marine Fisheries Service (NMFS) to promulgate a rule that would require fishing companies to pay the salaries of federal government “observers” on their boats. Lawyers for Relentless have argued that if all the justices did not agree with the fisheries’ interpretation of the statute, under Chevron, they would still have to defer to the agency’s interpretation, as long as the interpretation was reasonable. The administrative state therefore has more power than the judiciary – a clear violation of the Constitution’s separation of powers.
Although the Court could rule in favor of the fisheries without overturning Chevron, many conservatives are anticipating a sweeping ruling that reverses the 1984 decision. As Washington University Law Professor Sanne Knudsen has noted, the Court’s 6-3 majority includes justices who have openly criticized Chevron while serving on lower courts.
Should the Court decide to overrule Chevron, which it seems inclined to do after oral arguments in early February, it would be a major win in reigning in the currently unchecked power given to federal agencies, which have become overtly politicized and weaponized against conservatives.
Chevron upset the Constitution’s system of checks and balances, tipping the scales wildly in favor of the executive branch and paving the way for the growth of dangerously powerful federal agencies. Now, the Court has a chance to correct that error.
Katharine “Katie” Sullivan was an Acting Assistant Attorney General and a senior advisor to the White House Domestic Policy Council under President Trump. She previously served 11 years as a state trial court judge in Colorado.
