SCOTUS gave itself a lot more power

by Noah Feldman

The U.S. Supreme Court has overruled the Chevron decision, a basic building block of administrative law, thereby striking a blow against the power and authority of all federal agencies, including the Environmental Protection Agency. The ruling, in the cases of Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, marks the culmination of the conservative revolution at the court, joining recent landmark decisions overturning abortion rights, barring affirmative action, expanding gun rights and more.

Although the 40-year-old Chevron precedent was mostly unknown to non-lawyers until recently, overturning it will have profound consequences for the legal system and the whole apparatus of government through regulation.

The basic idea of the Chevron principle was that, when a federal statute is ambiguous, the agency charged by Congress with applying the statute should take a first crack at interpreting the law. Courts would then defer to the agency’s interpretation so long as it was reasonable. The intent and effect of Chevron was to treat agencies as what they are: experts in the substantive area Congress assigns them.

The EPA, for example, has deep expertise in the environment, so under Chevron, the EPA would get deference from the courts in interpreting environmental law. Chevron made a lot of practical sense for that reason. The EPA already has authority from Congress to make environmental regulation, so it was efficient for the EPA also to be able to make ambiguous laws conform with those rules.

From the start, the legal difficulty with Chevron was that it made agencies, not courts, into the most important interpreters of law. As a general matter, courts don’t like to give away their authority to interpret the law. Marbury v. Madison, the famous early Supreme Court decision that is the basis for all modern judicial review, says that “it is emphatically the province and duty of the judiciary to say what the law is.” Agencies are part of the executive branch, not the judicial branch.

So it was always a little anomalous for courts to defer to agencies’ statutory interpretations under Chevron, rather than deciding legal cases for themselves. But the modern administrative state is complex. Applying Congress’s vague directives can be a highly technical task, perhaps better done by subject matter experts than judges. Seen in that context, Chevron was one of the greatest statements of modesty in the history of U.S. law.

In an opinion by Chief Justice John Roberts, the conservative majority has now officially ripped away that veil of modesty and replaced it with direct supervisory power.

Roberts reasoned that the Administrative Procedure Act never specifically authorized, let alone directed, the courts to defer to agencies’ statutory interpretations. Chevron’s formal legal logic always rested on the implicit inference that Congress intended for the courts to give the agencies deference. Roberts’s opinion asserted that the implicit inference “does not approximate reality.”

In dissent, Justice Elena Kagan, a former professor of administrative law, repeated the arguments in favor of Chevron — arguments that have been orthodoxy throughout her legal career. The most powerful one is that Congress can’t possibly govern complex regulatory matters itself. It needs agencies and their expertise. Interpreting law and enacting regulation are key parts of the agencies’ exercise of their expertise. And she added, correctly, that overturning Chevron makes a mockery of stare decisis, the principle that precedent should be respected.

In practice, the conservative majority overturned Chevron because it distrusts agencies and wants to empower courts.

This marks a watershed moment of change in the basic ideology of the contemporary conservative legal movement. The most important intellectual leader of that movement was the late Justice Antonin Scalia, who was himself a professor of administrative law before going on the bench. Scalia embraced Chevron because he believed fundamentally in judicial restraint, and Chevron gave judges less power, not more.

But today, with a durable 6-3 majority, legal conservatives mostly treat the value of judicial restraint as passé, even naïve. Liberals, knowing they will not control a majority of the Supreme Court for many years, are now in the position of advocating judicial restraint and adherence to precedent.

It is noteworthy, then, that the opinion was written by Roberts, the one conservative to whom judicial restraint remains an ideal. Usually, Roberts likes to weaken old doctrines he doesn’t like rather than overturning them entirely. It’s hard to escape the conclusion that Roberts believes that, unlike abortion or guns, agency interpretation of ambiguous statutes isn’t an issue that will bring the public to the barricades.

Roberts is probably right about the public. But environmentalists and other safety advocates are now very much on notice that, even under a Democratic president, conservative courts will find it easier than ever to overturn agency action they don’t like.

Chevron was a doctrine inaugurated by Supreme Court justices four decades ago. It has now died at the hands of very different justices. This is what a revolution looks like.

Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University.