The Atomic Bomb Few Noticed
The News Media Fixates on the Immunity Case and Insurrection Verdict; A Far More Reaching Case Was Decided Last Week
Friday was not a good day for America.
To begin, the world was still dealing with the fallout of the Biden Debate Debacle on Thursday night. It was so bad that Trump spewed egregious falsehood after falsehood but Biden looked like a deer in headlights unable to comprehend what was happening. His staff did him no favors in preparation (tip: when debating Trump don’t worry about stats or specifics on policy details, he doesn’t care about them and neither do most of America; instead focus on confronting his lies and make it all about him and his crimes). But Biden’s performance confirmed the narrative his campaign team have been hiding all along; Biden is old, fragile and it may be time for him to be put to pasture.
After a performance like that, you could detonate a nuclear bomb and people wouldn’t notice. On Friday, the Supreme Court did. As if to further take your attention away from it though, they gave a shiny object on the “Obstruction of a Public Proceeding” cases relating to the 1/6 insurrectionists, a case that impacts only 50 people at best. That, coupled with the “Trump Immunity Case” which only impacts Presidents and former Presidents, and the news networks had their entire gaze elsewhere when the Supreme Court dropped a bomb.
They overturned Chevron. This barely registered a blip on the news programs but impacts everything in government. Every person, every law, every regulation, every issue.
I realize to non-attorneys, this doesn’t feel important at all. However, it is a huge cornerstone of the New Deal Administrative State; removing it turns back the clock to before the “switch in time saves nine,” and the has us back on course to the Lochner Era and the Guilded Age. It was so revered, Arch Conservative Antonin Scalia, a former Administrative Law Judge himself, sang its praises and found it a pragmatic, conservative solution to agency overreach. It’s a benchmark that every law student learns.
What the Hell is Chevron?
The "Chevron decision" refers to a landmark ruling by the United States Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). This case established a significant principle of administrative law that has had a profound impact on how courts review agency interpretations of statutes.
In Chevron, the Supreme Court addressed the issue of how courts should treat an agency's interpretation of a statute that it administers when that interpretation is challenged in court. The case involved the Environmental Protection Agency (EPA) and its interpretation of certain provisions of the Clean Air Act. The key question was whether the courts should defer to the agency's interpretation or apply their own independent judgment.
The Court articulated a two-step framework, now known as the Chevron deference test, which outlines when courts should defer to agency interpretations:
Step One: Courts must first determine whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, both the court and the agency must give effect to that intent, and the court does not defer to the agency's interpretation.
Step Two: If the statute is silent or ambiguous on the issue, the court proceeds to determine whether the agency's interpretation is based on a permissible construction of the statute. If so, the court should defer to the agency's interpretation, even if the court might have arrived at a different interpretation independently.
This approach has been widely influential in U.S. administrative law because it promotes consistency and predictability in the application of federal statutes by allowing agencies leeway in interpreting ambiguous statutory language. It also acknowledges the expertise of administrative agencies in their respective fields.
Since Chevron, the deference doctrine has been subject to critique and refinement in subsequent court decisions and scholarly debates. Nevertheless, it remains a foundational principle in understanding the relationship between administrative agencies and the judiciary in the United States. Understanding Chevron is crucial for law students and practitioners alike, as it significantly shapes the practice of administrative law and judicial review of agency actions in the U.S.
How Does Overturning Chevron Impact Us?
Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, overturned the Chevron longstanding precedent (so much for stare decisis and the power of precedent with this Court). Essentially, the decision shifts power from the Executive and Legislative Branches, to the Courts. Republicans, led by Leonard Leo of the Federalist Society, have been working at stacking the judiciary with as many hardline conservatives as possible, and the Chevron decision was one of the last bulwarks of the administrative state. Scrapping it empowers this conservative judiciary, who can now interpret Congressional actions any way they see fit and able to justify.
It impacts Congress in that it provides even less lattitude for them to craft laws. They can no longer leave terms ambiguous and subject to Executive Branch/Agency regulation, they have to actually specify their intentions. Which means there is a greater likelihood less laws are passed since clearer definitions usually results in less support.
It impacts the Executive Branch as every decision they now exercise is subject to scrutiny, in various jurisdictions and circuits who may choose to enforce laws more arbitrarily and in contradiction to one another.
It impacts the Judicial Branch in that decisions previously left to ALJs in agencies now have to be decided by actual judges. For example, ALJs for Immigration who regularly process (and mostly reject) asylum claims now have little capacity to do so; those decisions have to go through a court now. The alternative is that the ALJ is still empowered to make those decisions, but every decision is subject to a likelier district court appeal, which may number in the thousands, and strings out the process for years.
But that is the reason the six justices upended Chevron in the first place. It was originally decided in 1983, when Republicans controlled the Executive Branch and were upset the liberal Supreme Court was stopping their decisions from going through. Now that the Executive is increasingly controlled by Democrats and the Republicans control the Judiciary, they want to shift power there. The only way to stop it is to elect more Democratic Presidents who can then appoint more liberal Supreme Court justices.
Out of all the cases decided by this Supreme Court this term, Loper is by far the most important one. We’ll be dealing with the implications of this for decades. That few seemed to notice or care is truly a black stain on America, the Supreme Court and the news media, who are more interested in clicks and soundbytes than public service.
PurpleAmerica’s Obscure Fact of the Day
As a member of the Senate Judiciary Committee, Minnesota Seator Amy Klobuchar emphasized the importance of the Chevron doctrine, and specifically asked each of Donald Trump’s Supreme Court nominees, all of whom joined the decision to overturn the landmark decision, if they would respect Chevron as precedent.
In 2017, during Justice Neil Gorsuch’s Senate confirmation hearing, Klobuchar pressed Gorsuch on his view, articulated as a lower court judge, that Chevron should be overturned. His views on Chevron were part of the reason Klobuchar did not vote to confirm Gorsuch.
In 2018, during Justice Brett Kavanaugh’s Senate confirmation hearing, Klobuchar questioned Kavanaugh on his views, wherein he stated that “Chevron serves good purposes… [AND] courts should not be unduly second-guessing agencies.”
In 2020, during Justice Amy Coney Barrett’s confirmation process, in response to written questions submitted by Klobuchar, Barrett affirmed that Chevron was “a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis.”
It’s good to see someone had the foresight to ask. My only question is that if they don’t adhere to what they said in confirmation hearings, what good are the hearings?
PurpleAmerica’s Final Word on the Subject
“Administration of the law has just turned into a lottery wheel, and administration of the laws will be determined now based on where you live and the judge you are lucky or unlucky enough to get.”
—Legal Scholar Laurence Tribe