The End of Chevron Deference

While the post title sounds like a bad spy thriller, Chevron deference is actually a cornerstone of the modern administrative state in the U.S., so naturally, the batshitloonitarians on the Supreme Court (aka ‘Republican appointees’) might obliterate it (boldface mine):

The underlying issue in Loper is deceptively banal: A conglomeration of fishing companies is suing the National Marine Fisheries Service (an agency within the Department of Commerce) over a rule that requires fishing companies to pay the costs for observers who make sure those companies are in compliance with regulations. I don’t care who pays for the monitors. I don’t care about the eight or nine stuffed suits who do care about who pays for the monitors. And I don’t care about the rule. I do care, however, about who gets to make the rule.

The legal concept spelling out who gets to make the rules is known as “Chevron deference.” To explain Chevron deference, a quick refresher course in American civics may be in order: The legislative branch makes the laws, the executive branch enforces them, and the judicial branch interprets them. Republicans would like the lesson to stop there, but often the executive branch has to issue additional orders to enforce the laws passed by Congress. We sometimes call these orders “rules” or “regulations.”

Chevron deference is the legal concept that courts should defer to the interpretation of the executive branch and its regulatory agencies when assessing the will of Congress. Its name stems from the 1984 case Chevron v. Natural Resources Defense Council, because that’s where the concept was best articulated. It’s necessary because even the most textually straightforward laws can result in wildly different interpretations. Congress could pass a three-word law—“Clean water now!,” for example—and we’d still need additional regulations telling us what “clean” and “now” and even “water” mean in practice. Chevron deference says that we should go with the interpretation of the executive branch and its experts instead of some random judge in Washington, D.C., unless the executive branch is clearly overstepping its bounds or maligning the will of Congress.

You can see why Republicans hate Chevron deference: Deferring to facts and expertise is not their thing, especially when the pencil-necked geeks who actually study the issues are forever getting in the way of their smash-and-grab capitalism. You can also see why conservative judges hate Chevron deference: It takes power out of the hands of the courts and places it in the hands of the president, whom the people actually elected. Jurists like Neil Gorsuch, who has spent a large part of his career railing against Chevron deference, claim they want to return power to Congress instead of the executive, but that’s a lie. Without Chevron deference, it won’t be Congress making the detailed-oriented decisions about, for example, who has to pay for fish watchers; it will be the courts who assume that power. Getting rid of Chevron deference will allow the six conservative justices on the Supreme Court to essentially deregulate the entire country.

Loper explicitly asks the court to overturn Chevron. It’s the case Gorsuch has been waiting for. Thomas, Alito, and Kavanaugh have all been critical of Chevron in the past and also probably believe that Supreme Court justices should be outfitted with golden crowns. Roberts loves giving judges more power as well, but Chevron is a 40-year-old precedent, so there’s a chance he won’t vote to overturn it. This case could very well come down to Barrett’s beliefs about the administrative state. Maybe the best thing I can do is pray.

I have no idea how the federal government is supposed to regulate anything if Chevron deference falls. And if it does fall, then the primary purpose of the Democratic Party will have to be appointing judges, not just to reverse the overturn, but to have their own judicial tyrants in place.

But there is no difference between the two parties something something, I guess…

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