The United States Supreme Court recently announced it will be reviewing Loper Bright Enterprises v. Raimondo, which has the potential to overrule a four-decade-old precedent that has plagued the regulatory scheme, the Chevron doctrine. Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 800 (1984) is a pillar of administrative legal analysis, and every lawyer today could recite the two steps in their sleep, engrained in their memories from the lecture hall of administrative law class. The two-step process states that in the event Congress did not clearly define the language within a statute or directly speak to a given scenario, the agency tasked with carrying out this specific statute is provided deference in what that ambiguous term means. Originally, the idea was that the agency is in the best position to determine certain ambiguous matters due to their “expertise” and familiarity on a specific area or function of our government. However, that thought process has gotten out of hand.
For context, in Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 800 (1984), the Supreme Court sided with the Environmental Protection Agency (EPA) interpretation of what a “stationary source” meant within the Clean Air Act. In 1984 when the decision emerged, this was a win for the Reagan administration. Then, the conservative EPA cut back the regulations of the Carter administration. Little did America know, Chevron would transform into one of the biggest legal hurdles, hindering the efficiency and autonomy of people and businesses alike. As the decades have passed since the Chevron decision, agencies have gained power within the Courts through unchecked deference; thus, creating an impossible burden for parties opposing agency regulation.
The Loper case defines the very problems associated with Chevron - small businesses and individuals mandated to interact with the regulatory scheme simply cannot keep up with demands agencies put forth. The Loper amicus brief said it best in the summary of their argument - “Over the past forty years and counting, [Chevron] has wreaked havoc in the lower courts upon people and businesses.” Here, Loper Bright Enterprises is suing the Secretary of Commerce, Gina Raimondo, due to the harsh effects the National Marine Fisheries Service (NMFS) has on the commercial fishing industry. As the regulation stands, Loper, a family-owned herring business operating out of the New England area is being oppressed by the regulation which requires a NMFS agent be present on every fishing expedition to oversee and enforce federal regulation. This burden extends beyond the encroachment of a federal agent intently watching a small business’ every physical move – these businesses are required to cover the expense of the federal agent’s time, amounting to an average of $700 per day. For Loper, this was around 20% of daily profits. In any business, a 20% profit loss per day cannot be considered positive. Loper is going tell the Supreme Court the story of multiple American industries and their interactions with federal and state agencies.
It is anticipated that this is the Court to overturn Chevron, especially since the textualist majority has not been shy in their sentiment that statutory interpretation should be utilized instead of the overly broad power Chevron provides to regulators. Notably, Clarence Thomas in a 2020 dissenting opinion stated, “Chevron also gives federal agencies unconstitutional power.”
The fact the Court took this case, is encouraging to anyone who has or will litigate against an agency. For far too long, Chevron has tipped the scales in the government’s favor, causing an imbalance in the delicate powers of our American governmental system. Agencies have arguably become just as powerful as Congress, despite the people not having a voice as to who the decision-makers are. On the flip side to this, there is an argument that agencies are representative because they are an arm of the executive branch, and because the President is elected, agency decisions reflect the President’s values.
If the Court revokes Chevron, this holds our representatives in Congress directly accountable, given Chevron only comes into analysis when Congress has not been entirely clear in the legislative process. By reversing Chevron, Congress is held accountable to answer big policy questions, with clarity.