Denying Deference
Before starting law school, I thought most law was established, even stagnant. I knew that certain politicized cases made headlines when overruling precedent. But I learned that many influential cases overturning precedent are not broadly publicized. For instance, the Supreme Court recently decided Loper Bright and Relentless (which were argued in tandem) and by overruling the 1984 Chevron case restored a unique power to the judiciary: the power to determine what the law is. Americans should understand these cases and the change they herald.
Many Americans learned in high school government class that the judiciary interprets the law. The power to interpret is to say what the law is. In 1803, Chief Justice Marshall asserted this in Marbury v. Madison as “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Congress affirmed this notion when enacting the Administrative Procedure Act (APA) in 1946. In the words of the Loper Bright Court, the APA affirmed the principle “that courts decide legal questions by applying their own judgement.”
In 1984, however, the Supreme Court deviated from that principle when it decided Chevron. In Chevron, the Court claimed that “the court does not simply impose its own construction on the statute” at issue; instead, an agency gets to construe the statute if “the agency’s answer is based on a permissible construction.” The decision meant that the courts no longer had full authority to interpret statutes. Instead, agencies got the first pass and courts had to follow that interpretation if it was “a permissible construction.” This concept is known as Chevron deference.
True enough, under Chevron deference agencies could not assign whatever meaning they wanted to the statutory language. For example, if a statute required something to be “red,” an agency could not say that the right color had to be “blue.” But if an agency provided a “permissible construction” of the statute by defining “red” broadly to include “pink,” the courts had to defer and adopt that interpretation. This is true even if the agency previously defined “red” to mean “only scarlet.” Courts also had to defer to the old interpretation during the time that agency was using it. While some hailed Chevron deference as courts deferring to experts, in reality this provided an opportunity for agencies to accumulate ever more power and subvert democratic processes. What’s wrong with agencies having more power? A lot.
Agencies are predominantly unaccountable. The president can appoint and replace the heads of some agencies. In theory, Americans can reprimand an agency’s performance by voting for a new president who will replace the head of that agency. But the tens of thousands of people staffing agencies are bureaucrats beyond political rebuke. Because presidents change at least every eight years, if not every four, these bureaucrats can push for their own policy agendas and play the long game. Changing the head of an agency is not enough to keep an entire agency accountable.
Additionally, agencies have immense power that perseveres unchecked. They issue legally binding regulations that individuals and companies follow to avoid litigation. Agencies also release statements without binding force that companies frequently follow to avoid potential litigation. Agencies enforce regulations with lawsuits, but the force behind the threat is practically unlimited funding. Relative to small businesses and individuals, agencies can seemingly afford to stay in court forever. Small businesses and individuals often cannot afford to spend time away from work, draining their bank accounts by resisting agencies’ claims in court. It is often easier, and cheaper, to settle quickly. And with the ability under Chevron deference to tell the court what the law is, settling is all but guaranteed. Agencies are good at holding out until the other party succumbs.
These issues are exactly why NCLA took Relentless all the way to a Supreme Court victory. Agencies abused the interpretive power that never should have been theirs. As Chief Justice Roberts wrote, “Chevron was a judicial invention that required judges to disregard their statutory duties.” Therefore, Loper Bright and Relentless did not diminish agencies’ ability to do their jobs; they restored the judiciary’s ability to do its job.
August 13, 2024