SCOTUS Decision Review: Chevron Is Overruled

What Will This Do To The Administrative State?

Tony Katz:

This is a massive decision, really the overruling of Chevron versus Natural Resources Defense Council going back to 1984, the case is Loper Bright Enterprises versus Raimondo putting an end to what is referred to as Chevron deference a 6-3 ruling with a dissent from Elena Kagan where I’m surprised she didn’t actually break into tears right there on the page. Talk to me about the case, talk to me about Chevron deference, and talk to me about what comes next.

William Jacobson

Well, it’s an important case. I think some people may be overextending. What it means. It’s the end of the bureaucracy. It doesn’t mean that bureaucrats can’t do stuff anymore or anything like that. It really has to do with where it’s unclear whether authority has been given to an agency to act. Who gets to decide whether the agency can act? That’s the core of it. And so, what we have is we have a lot of situations where agencies are taking on powers that people don’t believe they were given by Congress. And under that doctrine, the courts would defer to the agencies own interpretation of its authority and what the Supreme Court just said is “No, you can’t do that.” That’s a matter for the courts to decide. Now court may decide that yes, the agency has that power or no, it doesn’t, but it’s going to be a fully independent decision given no deference. That’s what they call it, Chevron deference to the agency’s own interpretation of its own authority. And that’s what it means. And that’s important because we see the EPA, we see various federal agencies continuously expanding their authority and expanding what they’re allowed to do. And that’s so I think I think it’s important, but it’s not the end of the administrative state, but it is perhaps the end of the unilateral expansion of the administrative state, that if you’re going to expand these agencies, you’ve got to do it by congressional act, like in so many other cases that have come up in the Supreme Court. All the Supreme Court is saying is that it’s a matter for Congress to decide what authority an agency has and if there is a dispute, as to the scope of that authority, then the courts decided. So, in one sense this is like not a big deal. It’s only a big deal because of a bad decision in 1984 which essentially empowered agencies to determine their own jurisdiction.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. – Wikipedia

Tony Katz:

Well, I would say that I do think that it is limiting in the idea without representation that’s how the agency class works. We don’t get represented. They decide to have the full force and effect of law. They’ve got budgets that never go down and we don’t have recourse. It would seem to me that the overruling of Chevron brings back the opportunity. For a level of recourse, and while it doesn’t end the agency class, I would argue that it does subdue them, it does bring things back more into a square.

William Jacobson

Well, it does, but it doesn’t destroy their ability to act. What it destroys is their ability to use some vague statutory authority to expand the scope of what they can do. I don’t think it was directly involved in this case, but there have been a lot of cases about, you know, what the term “waters” means, the “waters of the USA”, things like that. And basically, what this would hold is that’s something ultimately for a court to decide that. You can’t defer to the agency as to what it can regulate. Now, if there is a clear delegation of something to an agency from Congress, this decision has no implication on that, no impact. It’s only really where there’s some vague reference that an agency is invoking. To for its authority to regulate in that circumstance it’s going to be completely up to the court to decide, with no deference given to the agencies own interpretation of its authority.