You can count yourself lucky with a profit in the hold…
— from ‘The Trawlerman’s Song’, by Mark Knopfler
In 1984, the Supreme Court decided the case of Chevron, Inc v Natural Resources Defense Council, Inc.
That decision announced what has come to be known as “the Chevron Doctrine” (CD), to wit:
When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: Our Constitution vests such responsibilities in the political branches.
That means, if it’s unclear whether a regulation (reg) promulgated by an agency exceeds the authority which Congress gave the agency, the Courts don’t get to decide that question — but must, instead, defer to the agency as to the legality of its own reg.
If there is one thing universally true about government bureaucrats, it’s that they will expand their own authority as much as they can get away with.
Why? Because the more regs they administer, the bigger their budgets?
Under the ‘CD’, once an agency is given authority by Congress to regulate, if that authorization doesn’t specifically limit the extent of regulation, then the bureaucrats can expand their authority by adopting any reg they want — and it’s nearly impossible to challenge those regs in Court. In other words, there is nearly no limit on the bureaucrats increasing the scope of their own authority, and hence their budgets.
Ain’t that convenient.
When the Chevron case was decided, there is no indication the Court ever intended that result — because it never apparently dawned on the Justices who decided the case what the unintended consequences could be. Possibly because only six of the nine Justices were involved in the decision? Three of them, Renquist, O’Connor, and Marshall took no part in the case for various reasons.
So by a 6-0 vote, the Supreme Court insulated the federal bureaucracy from most judicial review of the limits of bureaucratic rule making. In the intervening years the ‘CD’ has been the subject of criticism by legal scholars —and lower court judges stuck with having to make rulings based on it. Consequently, for several years now some Supreme Court Justices have been calling for the ‘CD’ to be overruled.
Those questioning the constitutional validity of empowering the executive branch regulatory agencies to interpret their own rules, instead of the courts, argue that the ‘CD’ violates the concept of ‘separation of powers’ – and the corollary doctrine declared by the Supreme Court in Marbury v Madison, in 1803, that “…It is emphatically the province and duty of the judicial department to say what the law is…”
It took 40 years for the Court to be comprised of a majority of Justices who believed the original constitutional separation of powers concept — and that the doctrine declared in Marbury — still apply. After all, the Justices who decided Marbury had first-hand knowledge of what the Constitution meant, because they were alive when it was written.
So, after four decades — during which the number of questionably legal federal regs has expanded considerably — a majority of Justices have decided enough is enough. They discarded the ‘CD’. To the chagrin of federal bureaucrats, as of June 28, 2024, that doctrine is no more. It was overruled by a 6-3 vote. Six Justices brought it into our legal world, and six took it out.
The decision in which the ‘CD’ met its well-deserved demise occurred in two consolidated cases. Loper Bright Enterprises v Secretary of Commerce, and Relentless, Inc v Department of Commerce.
Like the Corner Post truck stop I wrote about in Part One, Loper Bright Enterprises is a family business . They’re commercial fishers (as are the other Petitioners) who are all financially burdened by a (possibly illegal) federal reg.
I could use a layoff gettin’ my strength back,
but there’s a loan to pay off and a few skip jack…
In this case, the reg was promulgated by the US Department of Commerce. Loper and the other Petitioners challenged that reg in federal Court under the same Administrative Practices Act (APA) that the Corner Post owners relied on.
Loper lost their challenge because the lower court — which was bound by the ‘CD’ to decide the case — deferred to the Department’s interpretation of the validity of their own regulatory authority. The Supreme Court’s decision, overruling the ‘CD’, means the lower courts must follow the APA and decide the legality of the reg — rather than deferring to the Department interpretation.
Like the family owners of the Corner Post, the fishing family in the Loper case will get their day in Court to challenge a federal reg that burdens them financially — and ultimately makes things more expensive for all of us.
Last year, I wrote about <em>West Virginia v Environmental Protection Agency, in which the Supreme Court ruled that by enacting a regulation that effectively shut down “all fossil-fuel electricity generating plants in the country” the federal EPA had exceeded the authority Congress gave it.
In that case, the ‘CD’ was not an issue (for the majority of the Justices), because the EPA regulation so grossly exceeded congressional authority, there was no need to even consider the bureaucratic interpretation.
Nevertheless, the dissenters in that EPA case alluded to the ‘CD’ as a reason to allow the EPA to shut down of the fossil-fuel electricity generating plants in the country — with whatever economic impact that would have had. Clear evidence of how potentially dangerous regulatory authority by bureaucrats can be when it is non-reviewable by Courts because of the ‘CD’.
Two of the dissenters in the EPA case also dissented in both the Corner Post and Loper cases. The third dissenter in Corner Post and Loper, was the newest Justice, appointed by President Biden, who replaced the now-retired third dissenter in the EPA case. The Biden administration defended continuance of the ‘CD’.
If there is any ‘ideological’ differentiation in that judicial alignment, it’s that the dissenters appear to naively believe (like many highly educated people) in an imaginary omniscient infallibility of so-called “expert” bureaucrats.
The majority know better.
It seems the majority of the current Court Justices believe it’s time that Orwellian big-government bureaucracy is brought to heel, so small businesses like the Corner Post truck stop can get on with servicing truckers — hopefully without the government making it more expensive for all of us.
And the Loper family can “go fishin’ again” without government “pirates comin’ in to steal their gold”…
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.