Everything You Need To Know About Chevron Being Overturned

This week, you might’ve heard about several Supreme Court decisions being handed down, all of which have been sensationalized by the media as marking the end of organized society.

One such decision was the recent decision to overturn “Chevron.”

“Chevron” is a simplified term used to describe a legal standard that was invented in the 1984 case Chevron U.S.A., Inc. v. NRDC.

In order to fully comprehend what Chevron is, you need to know a little bit about Administrative law.

Administrative law refers to the legal sphere in which federal agencies operate.

There are different standards and theories that apply to various areas of law. For example, in criminal law the standard is “beyond a reasonable doubt” as you probably know.

The standard in family court to terminate your parent rights is “clear and convincing evidence.” A less forceful standard because it deals with the best interests of a child.

When it comes to the law surrounding agencies, the “Chevron doctrine” is a specific standard of law only used when evaluating the legality of an agency’s action.

There are many agencies the USA has, which are an extention of the executive branch.

We have the EPA, Department of Labor, Department of Interior, ICE, and more.

These agencies produce regulations and publish them on the Federal Register. When an agency releases a proposed regulation, you, as a member of the public, have the right to comment on the regulation and give your feedback on the proposed regulation. This is called the “notice and comment” period.

Once that period is over, the regulation becomes law.

Now, as that little anthropomorphous Bill cartoon explained to you in 4th grade, a bill becomes a law when it is passed by congress.

So how, then, can an agency make a regulation that becomes a law without congressional approval?

The answer is that agencies are given an implied power to pass regulations based off the authority given by an existing law that was appropriately passed by congress.

Our legislators don’t have the time or wherewithal to draft every single IRS regulation relating to every type of tax payer, business owner, etc.

Congress can’t effectively regulate the thousands of FDA, EPA, or Labor requirements relating to every single person whom those regulations affect in America.

So, congress is said to give agencies an implied authority to create their own regulations based off laws that have been passed.

For example, a law passed by congress may say “We give the EPA authority to create any necessary regulations that reduce smog pollution”

The agency then will enact a laundry list of regulations that achieve that goal and that have the same binding force of law.

The EPA may fine people for interstate trucks that don’t meet emissions standards, etc.

But what happens when an agency seemingly deviates from the law and creates regulations that aren’t neatly authorized by statute?

Unless the statute specifically gave the agency the authority to interpret the statute, they technically don’t have the power of the judiciary to “say what the law is.” – a longstanding aphorism of law written in the seminal case Marbury v. Madison.

This is where the Chevron doctrine comes into play.

Prior to Chevron, courts used a legal standard called “Skidmore,” named after a case called Skidmore v. Swift Co, to address agency action.

If an agency enacted a regulation that was questioned, a judge would question whether the statute gave the agency the power to enact the regulation by assessing the agency’s interpretation of the statute against multiple contextual factors, such as whether the agency interpretation was longstanding, consistently held, contemporaneous with the enactment of the statute, thoroughly considered, or involved a technical subject as to which the agency had expertise.

This type of considerable weight is rooted in the beginnings of Agency law.

It has long been recognized that an agency’s argument for defending its regulation is inherently superior in credibility and persuasiveness because agencies, unlike old judges who can’t even work a smart phone, are better suited in their industries to have the expertise required to know whats best to effectuate a statute.

The Chevron doctrine tightened up this standard by prescribing a one-size-fits-all solution to these types of cases.

Chevron says, instead of deciding on a case-by-case basis whether the agency was acting within legal bounds, the court will simply accept an agency’s interpretation of a statute if it is “reasonable.”

Legal scholars have an issue with Chevron because it is a “theoretical minefield” and a “forrest of confusion.”

In theory, it’s difficult to justify a legal standard that hands judiciary power directly to the executive branch. Chevron essentially says, the agencies, and not the courts, will decide if their own interpretations of the law are up to snuff.

It’s like telling a criminal defendant, “you’ll be able to decide if you’re guilty beyond a reasonable doubt.”

Even former Supreme Court Justice Antonin Scalia, one of Chevron’s most fervent proponents, grappled with the theortetical underpinnings of Chevron. Ultimately, Scalia concluded that attempting to tease out congressional intent was a “wild goose chase.” In other words, arguing ad nauseam about the legal theoretical foundations that justify Chevron will get you nowhere.

In Scalia’s view, the practical benefits of reducing litigation with an across the board solution for these types of cases was good enough. For one, the history leading to Chevron hinted at a strong preference and deference to agency decisions anyway. Secondly, Congress likely implicitly intends to create statutes that give the agency interprative power.

Scalia defense of Chevron also included the fact that industry leaders at agencies are best suited to make regulatory decisions, and he cautioned against court involvement because once a court makes a decision about a regulation, that decision becomes law. Meaning, there is less flexibility in agency administration without Chevron in place.

Before Chevron, with Skidmore, courts were already giving agencies weight to their decisions, including “special weight” when the agency was acting “within an agency’s specialization or outside judicial competence, when rules are used contemporaneously with the statutory enactment, when rules are longstanding, and when rules are unchanged in a statutory reenactment”

The pre-Chevron era also gave “great deference” for agency interpretations of a statute when those interpretation were contemporaneous with the statute and has been a consistent and longstanding one.

However, in the pre-Chevron era, there was more litigation and more need for a one-size-fits-all-solution.

Now, Chevron has been overturned, and courts will likely go back to giveing “special weight,” “great deference,” and “considerable weight” to agency arguments instead of unquestionably deferring to the agency’s judgment when it says what the law is.

Although, there has been a stricter trend in some courts to be more scrutinizing of an agency’s decision when it attempts to adopt judiciary power.

Too Much Mumbo Jumbo, What’s The Bottom Line?

Chevron is a doctrine that gives agencies the legislative power to pass laws that without congressional approval, as long as the agency itself interprets it’s power “reasonably.”

Before Chevron, a very similar structure existed, and Chevron was merely a confused and ill-defined band-aid to solve the issue of a slightly more confused system.

Practically, Chevron is a sensible law.

Theoretically, there are problems with it.

Realistically, it is not the barricade to agency administration that headlines suggest it is.

Why Is Everyone All Up In Arms Over This?

The media has presented the demise of Chevron as an insurmountable roadblock for good agencies to get their work done and keep bad actors accountable.

The media makes no mention of all the times Chevron has helped uphold draconian laws and regulations passed by ATF, FDA, ICE, or DEA.

When it comes to presenting this issue to the public, the media tends to focus on how the demise of Chevron will help push conservative agendas but not how Chevron has been invoked to deny countless migrants entry in USA who are fleeing persecution in their homeland and attempting to gain temporary protected status through the courts.

The reality is, Chevron has been quietly phasing out anyway. With the final death knell, we will likely see more litigation tied up in the courts.

For those who would like to see agencies held more accountable will likely favor this ruling.

However, also consider that the majority of district and circuit court judges are Democrats, meaning that if judges are pushing any agenda relating to agency decisionmaking, it will likely be a liberal one.

Still Too Much Mumbo Jumbo Whats The Real Bottom Line?

The real bottom line is that this is all semantics and fear mongering. The demise of Chevron does not mark the end of agency functioning and it may actually come with some benefits depending on who you ask.

If you’d like the government to hold agencies more accountable, the death of Chevron theoretically accomplishes that in certain ways. However, all the money you’re saving on the halting of needless government regulation is probably just being transferred to maintaining the enormously expensive court system to litigate those matters.

If you’d like agencies to continue to have a practical solution that was legally sketchy but more efficient, then you’re a Chevron fan.

At the end of the day it is probably of marginal importance in your life, but it is not the end of society as the New York Times would like you to believe.

Keep in mind, the real reason they overturned it is because Chevron is symbolic of the liberal belief that putting trust in the government is OK. Because Chevron represented a strain of liberal ideology, they axed it.