The end of Chevron deference

BILL BRIGHT’S fishing boat is named The Defiance. The Defiance is part of a two-boat, family-owned herring fishing operation called Loper Bright Enterprises. It takes a certain amount of defiance to make it in the fishing business. It takes a great deal more to take on the U.S. administrative state. Yet, that’s what Bill Bright did when his business was hit with unfair regulations. As a result, the U.S. Supreme Court recently handed down one of the most important opinions ever regarding the separation of powers.

The National Marine Fisheries Service (NMFS), under the U.S. Commerce Department, regulates coastal fishing in the United States. In 1976, the U.S. Congress passed the Magnuson-Stevens Fishery Conservation Management Act (MSA) to ensure proper management of coastal fishing. One part of the MSA provides for government observers to ride along with fishing boats to ensure compliance. Importantly, the MSA has no such ride-along provision for Atlantic herring fishing operations. Despite this, the NMFS created a regulation requiring Atlantic herring fishermen to allow government inspectors to ride on their boats, and for the fishermen pay up to $710 per day for the privilege. Such a fee eats up twenty percent of the daily herring fishermen’s profits, effectively driving them out of business.

Keep in mind, Congress never approved this process or fee. The agency just invented it. That didn’t seem right to the captain of The Defiance fishing boat. So, with the help of some lawyers dedicated to ensuring the proper role of government agencies, Bill Bright sued the U.S. Department of Commerce.

For the past forty years, when citizens have sued federal agencies, they have run into a nearly insurmountable obstacle known as Chevron deference. The term comes from the U.S. Supreme Court case Chevron v. NRDC. In that case, the Court decided that if Congress’s intent is not clear in a statute, then courts should defer to executive branch agency interpretation of laws. While this may not sound like a big deal, it launched a substantial shift of power from Congress and the courts to the executive branch agencies. This poses a couple of serious problems when it comes to the separation of powers.

First, shifting power from Congress to the agencies undermines our democratic republic. Article I of the U.S. Constitution says that laws should be made by Congress. Such consequential power is situated with Congress because members of Congress are directly elected by, and therefore most responsive to, the people. Chevron deference, however, allows lawmaking by the executive branch. Executive branch agencies are staffed by unelected bureaucrats who, by and large, cannot be fired due to federal civil service rules. They therefore face almost no accountability from voters. Compounding this problem, Chevron deference incentivizes Congress, when they do write laws, to write them vaguely then allow the agencies to fill in the details through regulations. This way, if a Congresswoman’s constituents happen to not like a law she voted for, she can avoid responsibility by laying blame on the agency. All of this dilutes the consent of the governed.

Second, the shift in power also undermines the judiciary. Article III of the U.S. Constitution assigns courts the responsibility to decide “Cases and Controversies.” Like Congress, after Chevron, Federal Courts began surrendering authority to the executive branch on agency cases. This is an abdication of the judiciary’s core responsibility. It allows the fox to guard the hen house, as federal agencies get to both draft and interpret the rules.  

This surrender of constitutional responsibility by Congress and the Federal Courts has left those oppressed by executive agency decisions little recourse. They can’t hold their elected representatives responsible, and they can’t find redress through the courts. Chevron deference turned bureaucrats like low level government fishery service workers into omnipotent drafters, enforcers and interpreters of the law.   

But those days are over.

In Loper Bright v. Raimondo, the U.S. Supreme Court voted 6-3 to abandon Chevron deference. “Chevron is overruled,” wrote U.S. Supreme Court Chief Justice John Roberts, heralding a consequential victory for the separation of powers. In so ruling, Roberts’s majority opinion elegantly reasserted Congress’s role in lawmaking. The Roberts-led opinion relied not on the Constitution’s Article III language, but on the text of Congress’s Administrative Procedures Act (APA), a move that reinforces the preeminence of Congressional legislating over agency regulation. The opinion states that the APA “requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to agency interpretation of the law simply because a statute is ambiguous.”

The Article III issue was addressed, however, in a concurrence penned by Justice Clarence Thomas. While Thomas agreed with the majority’s finding under the APA, he would also have found explicitly that Chevron deference is unconstitutional. Thomas wrote, “I write separately to underscore a more fundamental problem: Chevron deference also violates our Constitution’s separation of powers…” 

The liberal Justices did not agree. Justice Kagan wrote a dissent, joined by Justices Sotomayor and Jackson. Kagan was concerned that this decision will “jolt the legal system” because thousands of cases have relied on Chevron over the last forty years, and that Chevron deference “has become the warp and woof of modern government, supporting regulatory efforts of all kinds.” That’s precisely the point the conservative majority is making. I suppose it depends on what you view as the proper role of government.  

The majority of this Supreme Court has a firm view of the proper role of government. They appear to be on a mission to restore U.S. Constitutional order. For decades now, the separate branches of government have been shirking responsibility in core areas while usurping power in others. These actions have warped our system. But now, with some defiance from a fisherman and steadfast determination from some conservative Justices, the ship may be righting.