All Hail the Death of Chevron!

by
David Brady, Jr.
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The most pervasive and prevalent aspect of government to the average American is the regulatory bureaucracy. Starting a business requires the acquisition of a license. Bureaucrats were given powers to create new legal requirements, accounting measures, and deviations from profit management. This was enabled by the law, through the delegation of powers by Congress to the bureaucrats, but also by the Supreme Court. But, that is coming to a close in the near future as the Supreme Court has overturned a 40-year precedent.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (a lengthy name–I will just call it ‘Chevron’ going forward) set forward a precedent that gave deference to regulatory agencies in interpreting and implementing regulations allowed for by law. Taking it as a given that congress defers powers to agencies, it established criteria for the legality of a bureaucracy’s actions. The first half of the criteria asked whether the law that creates an agency or empowers them is ambiguous about an aspect or not, and if it is not then the agency is deferred to for interpretation of the law. Then the court could evaluate whether it is reasonable or not.

Chevron enabled bureaucrats to interpret vague law and grant themselves powers that courts have to adhere to by precedent. This case armed the bureaucrats with immense powers to redefine words, statutes, enforce them in different mannerisms, and the like. This is on the assumption that they are considered the ‘experts’ and interpreters of the law and any area pertaining to it. Rather than interpret the law in conjunction with other legislation and the Constitution, lower courts are forced to abdicate to the agencies.

This may well come to an end in the near future.

Loper Bright Enterprises v. Raimondo, a new case, was argued in front of the 6-3 conservative Supreme Court touching on the issue of Chevron deference. This case pertained to federal regulators mandating monitoring of fishing boats and the agency charging the fisherman for the monitors’ wages. According to Jess Bravin at the Wall Street Journal, the argument made before the Justices followed:

Rather than accepting the fisheries agency’s interpretation of its authority under an ambiguous law, the plaintiffs said judges should have given equal weight to the business argument and decided for themselves the best interpretation of the conservation law.

This case calls into question the basis of court interpretation of bureaucratic regulation. An overturning of Chevron means that regulatory agencies, many of which can be interpreted to be illegal under a small-government lens, and their activities will have their actions more closely scrutinized by judges and possibly overturned. Sweeping redefinitions of powers will be curtailed decided upon by judges.

Those favorable to markets should rejoice at this decision. These regulatory agencies provide inefficient burdens on markets in the best case and at worst, they act as bludgeoning tools for regulatory capture. Strict curtailing of their powers, especially by a conservative Supreme Court, could lead to a sharp reduction of market interference.

Take, for example, the Bureau of Alcohol, Tobacco, & Firearms and their frequent redefinitions of various firearm accessories and kinds as “machine guns” to prohibit them. In another recent case, the Court overturned the 2017 Trump Administration ‘Bump Stock Ban’ on very similar grounds. Rather than accept the ATF’s interpretation of what qualifies as a machine gun, it pointed out that the ATF was wrong in its interpretation. This could very well be a foreshadowing of the Loper ruling. The reversal will heavily restrict the ATF from being able to undertake rapid rules changes without legislation being passed. It provides another barrier and opportunity to halt what are likely unconstitutional and intrusive rules.

The implications reach farther than the ATF though. Famously, the Chevron ruling was a win for conservatives that were using the EPA to redefine what a ‘source’ of pollution meant. At the time, the EPA being headed by a Reagan appointee wanted to loosen regulation. However, the ruling itself enables progressives with a deadly tool to redefine pollution. Rules changes could branch into more and more intrusive areas, especially through environmental regulations in an age of climate change fear mongering. A ruling against Chevron will defang the climate change activist bureaucrats from being able to impose more and more burdensome regulations that make everything more expensive.

Progressive media like the New York Times and Washington Post have begun to lament this decision, which should pose a good sign for those favorable to smaller governments. Progressives have begun to cry about the burden this will place onto the court system, that may very well kill regulatory agencies. Perhaps this burden is a feature rather than a bug? The death of Chevron calls into question the deep entrenched bureaucracy of Washington. Rest in (no) Peace Chevron (1984-2024).