The End of the Deep State?

A Few Words on Today's SCOTUS Decision to Overturn Chevron

Today the Supreme Court of the United States (SCOTUS) issued its ruling on the case Loper Bright Enterprises v. Raimondo. The ruling has triggered a torrent of outrage from the usual suspects:

• CNN.com: Supreme Court overturns 1984 Chevron precedent, curbing power of federal government

• NYTimes.com: Justices Limit Power of Federal Agencies, Imperiling an Array of Regulations

• NPR: Supreme Court just made it harder for federal agencies to regulate

• Washington Post: Supreme Court curbs federal agency power, overturning Chevron precedent

They’re trotting out all of the usual catchphrases by which Our Betters condemn decisions that don’t go their way, including “decided along ideological lines,” “reversed a 40-year old precedent,” “undid decades of law,” “judicial hubris,” and more.

Are they overreacting or is this case actually a Really Big Deal? Let’s contemplate it.

What was the origin of Loper Bright?

The original lawsuit in Loper Bright Enterprises v. Raimondo was filed by a group of commercial fishing companies against the National Marine Fisheries Service (NMFS), which is a part of the National Oceanic and Atmospheric Administration (NOAA) within the U.S. Department of Commerce. The fishing companies, including Loper Bright Enterprises, challenged a regulation imposed by the NMFS.

The regulation in question required the companies to pay for onboard monitors to ensure compliance with federal fishing regulations. These monitors were mandated to be present on commercial fishing vessels to oversee fishing activities, collect data, and ensure that the vessels complied with quotas, bycatch limits, and other regulatory requirements. The fishing companies argued that the cost of these monitors was unlawfully imposed on them and that such expenses should be borne by the federal government instead.

The plaintiffs contended that the NMFS did not have the statutory authority to require the fishing companies to cover the costs of the monitors. They claimed that this requirement was an overreach of regulatory power and placed an undue financial burden on their operations, potentially threatening their livelihoods. This challenge led to the legal battle that eventually reached the Supreme Court.

Federal fishing regulations? That sounds… very dull. What’s the big deal?

The actual facts of the case are, indeed, quite dull. What made it a big deal is this: SCOTUS granted an appeal in the Loper Bright case solely to decide the issue of whether the 1984 case Chevron USA Inc. vs. Natural Resources Defense Council should be upheld, overruled, or clarified. The rest of the case history of Loper Bright is essentially irrelevant to the SCOTUS decision. It’s all about Chevron.

OK… So what is Chevron USA Inc. vs. NRDC about?

Here’s how the Court explained it:

The question in Chevron was whether an Environmental Protection Agency (EPA) regulation was consistent with the term ‘stationary source’ as used in the Clean Air Act. To answer that question, the Court articulated and employed a two-step approach to review of agency action.

The first step was to discern whether Congress had directly spoken to the precise question at issue. The Court explained that if the intent of Congress is clear, that is the end of the matter, and courts were therefore to reject administrative constructions which are contrary to clear congressional intent.

But in a case in which the statute was silent or ambiguous with respect to the specific issue at hand, a reviewing court could not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Instead, at Chevron’s second step, a court had to defer to the agency if it had offered a permissible construction of the statute, even if not the reading the court would have reached if the question initially had arisen in a judicial proceeding.¹

So the “Chevron Doctrine” I keep hearing about in the media, that’s this two-step approach from the Chevron case?

Yes. When judges and journalists discuss the “Chevron Doctrine” they’re referring to this two-part test from the 1984 Chevron case.

To somewhat oversimplify the matter, the test works like this. Imagine Congress passes a statute that gives an administrative agency regulatory power over some area. Imagine that the administrative agency then uses its regulatory power (from the statute) to pass a regulation. Now imagine that the subject of the regulation thinks the agency is over-regulating and sues about it.

The “Chevron Doctrine” would then apply:

• Did the Congress make its intent clear? If yes, do what Congress aid. If not, then…

• Did the administrative agency offer a “permissible construction” of the statute?

That’s the two-part test.

Well, that doesn’t seem like a bad doctrine. What’s the issue?

The Chevron Doctrine might seem innocuous and reasonable, but it isn’t. Here’s why.

First, Congress rarely makes its intent very clear. Congress excels at “kicking the can down the road” to administrative agencies. So the first step of the test is almost always answered “no, Congress didn’t make itself clear.” There’s almost always ambiguity when laws and lawyers are involved.

Second, when SCOTUS says “any permissible construction,” that begs the question “well, what constructions are permissible?” And it turns out that a “permissible construction” is any interpretation where the agency’s decision is deemed “reasonable,” meaning it’s not “arbitrary, capricious, or manifestly contrary to the statute.”

That is an extremely easy standard to meet! Over the last 40 years, “permissible constructions” have extended to mean almost any justification whatsoever! Let me give an exaggerated hypothetical example….

Imagine Congress passes a new statute that gives the imaginary Bureau of Farm Regulation (BFR) the ability to regulate or ban “commercial products relating to dairy animals.” The imaginary regulators at the BFR then publish their list of regulations, and among these regulations, the BFR bans the use of vegan leather (AKA pleather).

The banning of pleather sends a shockwave through the fashion industry. A coalition of fashion labels led by Balenciaga sue the BFR, because their upcoming line of apparel is entirely made from vegan leather sourced from conflict-free sustainable petroleum manufactories.

When the case goes to court, the BFR says “Pleather is a commercial substitute for leather in fashion, so therefore it relates to leather; leather is a commercial product made from cows, so therefore it relates to cows; and cows are dairy animals; therefore pleather is a commercial product relating to dairy animals, and we can ban it.” Under the Chevron Doctrine, the Court hearing the case is forced to say “well BFR, since you have your reasons, you’re good to go!”

Now ask yourself: By this reasoning, is there anything the BFR couldn’t ban? “Cars are used to transport dairy products, therefore we can regulate cars.” “Guns are used to shoot varmints that prey on animals that produce dairy products, therefore we can regulate guns.” And so on.

With this (admittedly extreme) example, you can understand why the Chevron Doctrine was so important to the power of the Deep State. It effectively insulated all the regulatory agencies from judicial review and enabled them to act with virtually unchecked power. All they had to do was offer some reason for their regulation.

You’re right, that’s a terrible doctrine! Did today’s ruling put an end to this madness?

Yes. In today’s decision, the 6-justice majority overturned Chevron. The Chevron Doctrine is no more. Hence the wailing and whining by the left-wing media today.

But aren’t conservative justices supposed to uphold precedent? What happened here that they overturned 40 years of cases? Isn’t that a bad thing?

Yes and no.

In the past, conservative justices have tended to defer more to stare decisis (respect for precedent) than liberal justices have. However, in recent years, right-wing jurists have begun to realize that such an approach means that precedent can only ever shift Left.

Bluntly, if progressives are willing to overturn right-wing precedent; conservatives are not willing to overturn left-wing precedent; and the make-up of the court fluctuates over time between progressive and conservative; then over time, only left-wing precedent will stand!

Under the guidance of the Federalist Society, conservative judges and lawyers have begun to take a more activist stance that is willing to overturn prior cases that they deem to have been wrongly decided, however long ago that might have been.

This change in judicial philosophy, combined with a six-justice conservative majority in SCOTUS, has been responsible for many of the tectonic shifts in constitutional law lately.

Oh, wow. So the Chevron Doctrine was ruled unconstitutional?

Actually, no.

Justice Clarence Thomas held that Chevron needed to be overturned because it was an unconstitutional violation of the separation of powers between the executive branch and judicial branch. However, his was only a concurring opinion, meaning he agreed with the majority but offered his own reasons for doing so. His opinion isn’t binding precedent.

The majority of the court agreed to overturn Chevron on entirely different grounds.

OK… then what were their grounds for overturning Chevron then?

The official ruling of the court is:

The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.

In other words, SCOTUS found that the Chevron Doctrine was contradicted by a federal statute called the Administrative Procedure Act (APA), and therefore it overruled Chevron.

I’ve never even heard of this “Administrative Procedure Act” before now. What’s that about?

The APA is a statute passed by Congress in 1946. It was intended to be, quote, “a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.”

SCOTUS explains it as follows:

The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action. And it codifies for agency cases the proposition that courts decide legal questions by applying their own judgment.

As relevant here, the APA specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action —even those involving ambiguous laws. It prescribes no deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policymaking and factfinding.

And by directing courts to “interpret constitutional and statutory provisions” without differentiating between the two, it makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference.

[Edited for clarity; emphasis added]

The Court ruled that the Chevron Doctrine - which requires the court to show deference to agencies rather than use its own judgment - violates the requirements of the APA, which requires the court not to show deference.

Wait, wait. This makes no sense. The Court is saying that the Chevron Doctrine violates the APA. But the APA was passed in 1946, and the Chevron Doctrine was created in 1984. How does that work? Did the Court just decide to start ignoring the APA in 1984?

Yes, that’s exactly what happened.

Prior to Chevron, the judiciary would independently review the regulations of administrative agencies. Then, in 1984, it abandoned its historical approach to judicial review and adopted the Chevron Doctrine, giving near-total deference to the administrative agencies.

The Court explains it as follows in today’s ruling:

Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional judicial approach of independently examining each statute to determine its meaning.

Neither Chevron nor any subsequent decision of the Court attempted to reconcile its framework with the APA.

Chevron defies the command of the APA that the reviewing court—not the agency —is to “decide all relevant questions of law” and “interpret . . . statutory provisions.”

It requires a court to ignore, not follow, “the reading the court would have reached” had it exercised its independent judgment as required by the APA.

Chevron insists on more than the “respect” historically given to Executive Branch interpretations; it demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time, and even when a pre-existing judicial precedent holds that an ambiguous statute means something else.

That regime is the antithesis of the time honored approach the APA prescribes.

[Edited for clarity; emphasis added]

Thus, the Court says, “the deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.” Therefore, it has overturned Chevron and said, more-or-less, that Chevron was a mistake from the outset.

So in a sense the Court isn’t really adopting a new way of reviewing agency regulations, it’s returning to the old way of reviewing agency regulations that it had done until 1984, and was supposed to be doing all along?

Exactly. Today’s decision may not be conservative (it isn’t conserving the status quo), but it is downright reactionary. It’s returning to an early status quo that prevailed until 1984. Over the last 40 years, our federal agencies became more and more powerful. Now everything they do will once again be susceptible to judicial review. That’s what makes today’s ruling such a big deal.

Anyone opposed the Deep State’s administrative agencies should be pretty happy with today’s case, then.

Yes. However, there is a caveat. Chevron was only overturned because it was in contradiction to the APA. But the APA is just a Congressional statute. If the Democrats were to re-take the Senate and the House, they could simply amend the APA to bring back the Chevron Doctrine. Then SCOTUS would have to decide whether such a revised APA was an unconstitutional violation of powers, which it avoided doing this time around.

Had SCOTUS accepted Justice Thomas’s reasoning and ruled that the Chevron Doctrine was unconstitutional, that would have made Loper Bright much more secure. But it didn’t. So as it stands, we’ve simply moved the battlefield over Chevron from the Courts to the Congress.

OK. That’s a really helpful explanation. I wish Chevron had been overturned on Constitutional grounds but I’ll take the W. Is it time to go contemplate this on the Tree of Woe?

Not today. Between this ruling and last night’s Presidential debate, we’re going to contemplate this on the beach. The Democrats can have the Tree of Woe this weekend.

1. This block quote, and the other block quotes in this article, were extracted straight from today’s SCOTUS decision. However, I have eliminated all of the sub-quotation marks, case references, statutory references, and legal jargon that make such material so challenging for non-lawyers to digest. With those removed, it’s much easier for the layman to understand. Those interested in a deeper dive can, of course, just read the case itself.