Chevron Is More Than An Oil Company

When most people think of Chevron, they think of a gas station or an oil company.

But Chevron is more than a gas station.

And it’s more than an oil company.

Chevron is also shorthand for the 1984 U.S. Supreme opinion in Chevron v. Natural Resources Defense Council, Inc.

Four decades later, the high court has been asked to reconsider Chevron.

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To put it simplistically, Chevron requires that when courts interpret law with multiple interpretations, courts defer to the interpretation of the administrative agency that enforces the law.

Thus, in interpreting, for example, the Federal Election Campaign Act, or FECA, courts would defer to the interpretation of the Federal Election Commission, or FEC. That doesn’t mean the FEC gets a blank check. But it does mean that courts give the FEC leeway where FECA has multiple interpretations.

One rationale is that FECA is complex, and the FEC has expertise in the field of political-speech law that judges and their law clerks tend not to have.

The same rationale holds for other laws and other agencies.

Currently under consideration at the U.S. Supreme Court is Loper Bright Enterprises v. Raimondo, which challenges the rule and rationale of Chevron.

This issue isn’t snazzy in the way that catches the general public’s attention as some issues before the high court do. Still, this is important. At stake is a possible shift in power away from administrative agencies–commonly called the bureaucracy–to courts: To the extent that deference to administrative agencies lessens, the power to interpret law reverts to courts.

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Consider what the two sides in Loper Bright Enterprises assert and how their presumptions differ. The challenger is far less enthusiastic than the government about the administrative state. That’s not surprising, partly because the administrative state substantially originated in the Wilson administration in the 1910s.

Here’s part of the challenger’s assertions.

“First, Chevron is egregiously wrong several times over. As a constitutional matter, Chevron impermissibly transfers both Article III judicial power and Article I legislative power to Article II executive agencies, and it runs afoul of the Due Process Clause by requiring courts to systematically place a thumb on the scale against the citizenry. As a statutory matter, Chevron flouts the plain text of the APA, which makes clear that courts, not agencies, are supposed to interpret statutes–as a majority of the Court has already concluded. And Chevron is entirely ahistorical, as it purported to draw support for deference from a historical record that actually confirms that courts traditionally discharged their responsibility to interpret statutes even in cases involving executive agencies.

“Chevron has also proved unworkable and engendered significant negative consequences. … Thanks to Chevron, Congress does far less than the Framers envisioned and the executive branch does far more, as roughly half of Congress can count on friends in the executive branch to tackle controversial issues via executive action without the need for compromise, bicameralism, or presentment. That creates a dynamic where the ‘law’ on important and divisive issues changes radically with every change of administration, with the latest executive action predictably challenged in a hand-picked jurisdiction with an attendant emergency petition to this Court. Moreover, as baleful as the consequences are for the separation of powers, Chevron’s primary victim is the citizenry, as Chevron literally gives the tie to their regulators in every close case.”

By contrast, the government asserts: “Chevron gives appropriate weight to the expertise, often of a scientific or technical nature, that federal agencies can bring to bear in interpreting federal statutes. Chevron also promotes national uniformity in the administration of federal law and greater political accountability for regulatory policy. When a statutory provision is genuinely susceptible of multiple reasonable readings, choosing among those readings often turns on a policy judgment that Congress has vested in the agency and that is properly left to the political (b)ranches.

“Chevron respects the separation of powers and due-process principles. When an Article III court applies Chevron to uphold an agency’s interpretation of a statute, the court is exercising the judicial power while also respecting Congress’s Article I decision to vest authority in the agency to resolve an ambiguity or fill a gap within reasonable bounds.”

Look for a decision by June.

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As Dr. Randy Elf once told a three-judge panel of the United States Court of Appeals for the Ninth Circuit, “You just never know what [the U.S. Supreme] Court is going to do until it does it.”



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