Is America Ready for Life Post-Chevron?

By Jack Thompson ’27

Jack Thompson ’27

Since 1984, the precedent set by the court case Chevron v. NRDC has controlled the balance of power in the United States. Unfortunately, most Americans can’t get through the words “administrative law” without their eyes glazing over, which puts this precedent in a uniquely undercover position. In short, the idea behind this is that whenever Congress has not spoken directly about an issue, the courts defer to the agency with jurisdiction for filling the policy (regulatory) gap. This has given government bureaucratic agencies broad authority to act as they see fit. Since the court case was decided, Chevron has become a prime conservative target. When Americans make broad, general statements about how little Congress accomplishes, a fair share of that is due to Chevron. Under the doctrine, the less Congress does, the easier it is for federal agencies to function at the direction of technocratic experts. Congress has happily abdicated the role of executing wordy policy, instead deciding to write checks with only broad guidelines for how agencies use the funds. This dynamic has given rise to the infamous “fourth branch” of government: executive agencies.   

The current conservative Supreme Court has turned its attention to the doctrine in recent years. However, like most things this Court has undertaken, it is complicated and oftentimes confusing, well past the point of widespread public comprehension. In 2022, the Court was handed a shining opportunity to gut this doctrine with West Virginia v. EPA. In this case, the Environmental Protection Agency took action against the state of West Virginia for violating an EPA rule that the organization lacked Congressional authority to make; a point that is still disputed. The Court heard the case, and instead of siding with the EPA, as Chevron would dictate, it sided with West Virginia.   

In this ruling, however, they purposefully made no mention of the broader doctrine. Now, in 2024, the Court snapped its attention back to the precedent in Loper Bright v. Raimondo. In short, a group of fishermen claims that the Commerce Department under Secretary Raimondo acted without statutory authority in regulating them. That leaves us in flux as the Supreme Court deliberates, this time seemingly poised to overturn Chevron. However, as countless commentators have pointed out, there is never a sure bet with the Supreme Court of the United States.    

So, what happens post-Chevron? Discarding the test associated with Chevron that the courts are subject to following leaves us with one of two scenarios: Courts at every level will begin having the final say over how government agencies interpret ambiguity, or Congress will step up to make statutory language much more explicit. The first option is the more dystopian of the two; individual judges will be able to infuse their partisan tendencies into each case involving agency policy that they hear. The impact on the standing of the nation’s judicial system cannot be known with certainty, but it is unlikely that it will spark confidence. As of September 2023, the nation’s highest Court found itself in trouble, with its approval rating sinking to 41%, per Gallup.     

So that leaves it to Congress, which, as of March, has an approval rating of 15%. Bringing down Chevron would be disastrous on so many fronts, but it does give one sign of hope: for Congress to step firmly back into its role given under Article 1: supreme legislative authority. This scenario would cause serious changes to the functioning of the two institutions, including the massive return of experts to legislative personal offices and committee rooms, and the electoral purging of those who haven’t the faintest clue about policy, namely in Georgia’s 14th, Colorado’s 3rd, Michigan’s 12th, etc. It offers a new possibility for a modern, legislatively powerful Congress.  

It was not until the New Deal that the Administrative Procedure Act infused executive agencies with policymaking power. Before this, agencies were rather boring, as they operated at the beck and call of Congress or the President. Congress had a much larger authority over policy details which was poured over by statesmen who devoted themselves to the details. Our current Congress is not equipped for this. But we have no shortage of people who can step up and legislate in the weeds again. 

This is, admittedly, a big gamble. The House will likely dodge all responsibility and refuse to take up policy-heavy, wordy bills, and the overturning of Chevron will most likely just be a massive power grab by the judiciary. But on the off chance that we can see this as the opportunity that it is, it may be a way to restore some dignity to the institutions that we all think of as governing us. We will likely have very little choice, as the Court seems poised to gut Chevron (though there are always surprises involving the Supreme Court). But it doesn’t have to go quietly. Broad public awareness of the nuances of this topic is necessary to give the country a fighting chance of spurring its Congress into action. Even if the Court doesn’t fully kill the doctrine on this pass, it will undoubtedly try again. It’s well past time that this garners more than menial attention from outside academic circles, as it is in a prime spot to fundamentally change how our country works.  

 

  

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