Background

Under Chevron deference, courts have been obligated for the past half-century to defer to career expert civil servants in agencies who created

rules based on their statutory authority when the statutes were ambiguous or silent, as to highly specific and technical areas of regulation.

Chevron deference has been used in more than 19,000 cases and is the basis on which Congress has enacted broadly worded statutes granting

agencies regulatory authority for the past 40 years.

Now, the Supreme Court is poised to throw the baby out with the bathwater by overturning the very authority it directed Congress and federal

agencies to operate under.

The decision to take up the broader question of whether to overrule Chevron deference is ominous.

That, paired with the fast-tracking of the Relentless case to allow Justice Ketanji Brown Jackson—who recused herself from the Loper Bright

argument, as she was on the D.C. Circuit panel that originally heard the case—to participate, eerily suggests that the court is prepared to overturn

major precedent.

If it does so, it could result in the most extreme power grab by the judiciary in American history, allowing unelected judges to impose their policy

preferences over Congress and the agencies that are responsive to the electoral will of the voting public.

Unpacking oral arguments

In the oral arguments, many of the conservative justices demonstrated a willingness to overturn Chevron.

The petitioners in these cases swung for the fences, muddying the waters by providing no clear answer as to what constitutes a policy question

where the courts should not step in versus a legal question where the courts should act.

Further, Paul Clement, counsel for Loper Bright, declared that overturning this 40-year-old precedent with massive reliance interests held by

Congress, executive agencies, and regulated industries would be an act of “judicial humility.”

The conservative justices have the votes; the question remains: How far will they go in striking congressional and agency power?

The court also appeared ready to return to the Skidmore v. Swift & Co. doctrine, which preceded Chevron and, ultimately, would give federal

courts more power to implement their policy preferences and ignore agency expertise.

As Justice Elena Kagan aptly pointed out, Chevron replaced Skidmore because “judges [were] becoming too partisan in interpreting regulations,”

which “dampens that kind of ideological division between courts.” She also reasoned that “Skidmore is not a doctrine of [judicial] humility.”

Meanwhile, Justice Ketanji Brown Jackson emphasized that Chevron allows Congress to delegate policy choices to executive agencies and voiced

concerns that “if we take away something like Chevron, the court will then suddenly become a policymaker.”

Justices Brett Kavanaugh and Amy Coney Barrett, for their part, both seemed open to narrowing Chevron to apply only in cases where Congress

has affirmatively delegated interpretive authority to an agency.

This would be slightly less damaging for agency authority but still leave vast swaths of regulations open to challenge, as Congress has relied on

Chevron to provide that implicit, rather than explicit, delegation in its legislative drafting for the past 40 years.

U.S. Solicitor General Elizabeth Prelogar gave the justices an off-ramp, encouraging federal courts to exhaust their tools of statutory

interpretation prior to declaring that a statute is ambiguous before applying Chevron.

She also advised the justices to instruct lower courts to take a harder look at what constitutes “reasonableness” within the existing Chevron

framework.

Even so, a narrower ruling could chill executive agencies from acting aggressively, within their statutory authority, to protect the American people

from bad actors and industries seeking to maximize profit.

Conversely, Clement essentially argued that industries should make their own rules, rather than be bound to those made by agencies tasked with

protecting the American public from corporate abuses.

Unfortunately, it seems that the conservative justices will likely narrow Chevron; it is just a question of by how much.

Conclusion

The stakes of these cases could not be higher.

The conservative legal movement’s efforts to use the legal system to serve the interests of billionaires and corporate behemoths

at the expense of the American people has come to fruition.

Indeed, ending Chevron deference may prevent agencies from effectively serving the American people and empower corporations

to flout vital oversight.

Moreover, the outcome could affect nearly every policy area, including health care, civil rights, workers’ rights, education, environmental justice,

and financial regulation, to name only a few.