When the Supreme Court first decided Chevron v. Natural Resources Defense Council 40 years ago, it was hailed as a victory for a young conservative legal movement. Now, it is conservatives who are pushing for the precedent to be overturned while a Democratic president defends it.
The Supreme Court will hear oral arguments Wednesday in two cases that many expect will be used to overturn Chevron: Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
Both cases challenge a Commerce Department regulation forcing fishermen to not only carry federal fishing monitors, a power explicitly granted to the National Marine Fisheries Service by statute, but also to pay the monitor’s salary, which is not mentioned in the law.
The fishermen say they would be forced out of business if they had to pay for the salaries of the monitors who spend time on their boats and that Congress never intended for fishermen to have to pay them.
The Commerce Department, which has run a fishery monitoring system for decades pursuant to the 1976 Magnuson-Stevens Act, says that since Congress recently cut its funding, the agency can no longer afford to pay the monitors. The Commerce Department further argues that even though Congress never gave it explicit authority to force fishermen to pay the salaries of monitors, under the Chevron doctrine, the agency has the authority to invent this power in order to make the monitoring system work again.
Is that how the federal government is supposed to work? When Congress cuts funding for an agency, is that agency then empowered essentially to raise taxes to pay for its programs? Under the Chevron doctrine, two lower appeals courts said “yes.”
In the original Chevron case, President Ronald Reagan’s Environmental Protection Agency narrowed the scope of a Clean Air Act regulation, making it easier for oil companies to update their refineries. The Natural Resources Defense Council sued, arguing that the EPA was applying the Clean Air Act too narrowly. When the EPA lost in lower court, Chevron intervened on the EPA’s behalf and appealed the case to the Supreme Court.
Writing for the majority, Justice John Paul Stevens held that courts must defer to an executive agency’s determination of the relevant statute passed by Congress. Conservatives considered this a victory at the time since it took power away from unelected judges, many of whom were activist liberals, and gave it to federal bureaucrats, who at least, in theory, were under the control of democratically elected presidents. If Congress did not like how an agency ruled, then Congress could make the statute more explicit.
Two realities have changed since 1984 that have proven Chevron to be unworkable. First, Congress has largely stopped legislating. When it comes to big topics such as energy, the environment, and immigration, Congress is no longer making the big decisions that are necessary. Presidents from both parties have since stepped in and abused executive power to advance policy priorities that should have been advanced through Congress. Chevron has been a major enabler of this abuse.
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Relatedly, as presidents have become more comfortable using executive power to further policy goals, federal law has become less, not more predictable. If executive branch agencies have the power to rewrite regulations completely every time the White House switches parties, then federal policy in any one policy area is only as stable as the current party’s hold on the White House. Name any issue area, and over the last decade, federal law has flipped like a light switch as the White House has gone from Bush to Obama to Trump to Biden.
Federal bureaucrats should have only as much power as Congress explicitly granted them by statute. Even that is often too much. But for 40 years, presidents of both parties have been abusing Chevron deference to avoid making needed compromises with the opposing party and Congress. The Supreme Court now has the opportunity to remove this shortcut, and we are confident it will.