Chevron Deference For the Chronically Online
Um, you're welcome???
Unfortunately, this post is too long to appear in full in your inbox. I don’t know where it will cut off in the email version, but it will be available online. See you there!!!
I know what you’re probably thinking: Oh no, she’s going to try to explain very complicated legal proceedings using pop culture references and memes, right? Why couldn’t she have just invited a guest with at least SOME semblance of a law degree? Why couldn’t she have gotten another guest at all? Is E4P in its flop era? Should we throw a Death to E4P party? Should we invite Bella Hadid?
To which I say: ouch??
Can’t we stay a little longer in this paleo-E4P moment? Can’t I research and work through challenging conversations, then regurgitate what I’ve learned for all of you in a way that makes sense to my internet-addled brain?
Whether you want to read it or not, today I’m going to explain a Supreme Court decision (Loper Bright Enterprises v. Raimondo) that overturned a significant precedent known as Chevron deference in a way that I’ve been able to understand. I also want to look at how this ruling relates to other conversations we’ve had this year on E4P and what effects it might have on the US in the long term.
And You May Ask Yourself: “So…the Supreme Court Was Kind of Always Like This…?”
To kick things off, I thought it would be best if we began with the history of Chevron and the SCOTUS that decided it.
From 1953 until 1969, SCOTUS was led by Chief Justice Earl Warren, and the Warren Court became known for its shift towards liberal rulings and, by definition, interpretations of the Constitution. It’s interesting because Justice Warren himself wasn’t expressly liberal—he had served as the Republican governor of California and ran against President Eisenhower in the 1952 primaries—but because his court decided Brown v. Board of Education, Loving v. Virginia, and Griswold v. Connecticut, amongst other cases, it has gone down in legal history as “the most liberal court in U.S. history” (X).
When Justice Warren retired in 1969, President Richard Nixon appointed Warren Berger as the next Chief Justice, doing that funny thing where someone’s last name and someone else’s first name match…Earl Warren, Warren Burger...
Burger, like Warren, was himself a Republican, and his voting habits on the court as well (as what was known of his personal beliefs) reflected that. He strongly opposed having a female judge on the court and “was deeply prejudiced against gays to an extent which bordered on hysteria” (X). And yet, the Burger Court is known as “the last liberal court to date” (X). To give you a taste of just how “liberal” the Burger Court was, they decided Roe v. Wade in 1973 and Harris v. McRae in 1980. Roe, of course, decided that access to abortions was a constitutionally protected right, while Harris upheld the Hyde Amendment, which barred the federal government from providing Medicaid funding to states for abortions. Needless to say, the word “liberal” has done some heavy lifting in SCOTUS history.
This loosely sets the scene for Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. which was decided by the Burger Court in 1984. It’s a bit of a wonky case so bear with me as I work through it myself.
The question SCOTUS was asked to decide was: who should determine regulatory language and therefore have oversight over government agencies whenever there was a gap or grey area in legislation?
In 1977, Congress amended the existing Clean Air Act
to require any project that would create a major "stationary source" of air pollution to go through an elaborate new approval process conducted by the EPA [Environmental Protection Agency] called "new-source review." At first, the EPA interpreted the word "source" in the new law to cover nearly any significant addition or change at a factory or plant. This meant that even a single building or machine, such as a smokestack or a boiler, could be a "source" of air pollution under the law.
In 1981, after Ronald Reagan became President, the EPA changed its interpretation of the word "source" in the law to mean only an entire plant or factory, not an individual building or machine. Under this new interpretation, a change at a plant or factory needed to go through the "new-source review" process only if it increased the total air-pollution emissions of the entire plant or factory. Any company that wished to build a project at a plant that would create new air pollution could avoid the "new-source review" process by simultaneously making other changes to the plant in order to reduce its overall emissions by the same amount. The EPA's new interpretation allowed companies to make industrial decisions more freely as long as the total impact of their plants or factories on air pollution did not increase. It made building industrial projects easier, even if the projects created new air pollution (X).
This became known as the “bubble” interpretation as the EPA argued that any changes made to a plant or factory happened within the same bubble and therefore did not need to be reviewed individually. Because Congress had declined to define what they meant by “source,” the EPA felt it was up to them to make a judgment call and interpret it themselves.
Environmental groups, led by the Natural Resources Defense Council (NRDC), filed a petition challenging the legality of this interpretation in the Court of Appeals in the D.C. Circuit because the “bubble” interpretation felt antithetical to the EPA’s whole thing. In 1982, the court ruled in NRDC’s favor, arguing that the EPA wasn’t allowed to make this determination about what “source” meant for themselves. Fun fact I learned while researching this piece: the Circuit Court judge who wrote this decision was actually Ruth Bader Ginsburg! The more you know!
Anyway, this is where things get wonky because the next few developments in this case have me somehow vaguely siding with both Ronald Reagan and Chevron which is not fucking fun for me!!!!!!
Once the D.C. Circuit Court handed down their ruling, noted eco-justice warrior Chevron Corporation appealed the appeal with a petition for certiorari which is a legal filing that “argues that a lower court has incorrectly decided an important question of law, and that the mistake should be fixed to prevent confusion in similar cases” and also stuck their name on the case (X). As you can see in the above picture, this petition is what set the case before SCOTUS who voted to hear it, which brings us to the next chapter in this story.
I know what you’re thinking at this point in the piece. “This case has everything: tension between all three branches of government, dramatic questions over word choice, moral ambiguity. Don’t look now—Ruth Bader Ginsburg is making the decision we want her to make right now but will ultimately realize is wrong.”
Back to the matter at hand: it’s my understanding that, at the core of the case, the courts were trying to grapple with whose checks outweigh whose balances. The EPA is a federal agency and therefore a part of the Executive Branch—should their experts have more say and sway over regulatory interpretation than Congress (Legislative Branch) who wrote and passed the bill that is being questioned? Does the Supreme Court (Judicial Branch) have the most power in this whole situation?
By filing their petition, Chevron sided with the EPA, arguing (yes) in their own favor but also in support of the idea that government agencies should be allowed to act based on their own interpretations of ambiguous elements of the laws that governed them. It’s unfortunate that the case that proposed this argument centered on a morally murky decision—while NRDC was absolutely correct in their argument that the EPA’s interpretation actually harmed the environment it’s meant to protect, it’s hard to argue that a federal agency shouldn’t be allowed to make its own judgment calls. Not impossible—but hard to argue nonetheless.
Ultimately, SCOTUS agreed with Chevron, finding that
if a statute is silent or ambiguous with respect to a specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. If Congress has explicitly left a gap for the agency to fill, the regulation is given controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute. If the legislative delegation to an agency is implicit, a court may not substitute its own construction of a statutory provision for a reasonable interpretation by the administrator of an agency (X).
The concept of Chevron deference is therefore the idea that “a government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable” (X). Or, that a federal agency has the right to use its experts to make its own decision in any situation unless elsewhere specified.
While this was a huge win for Big Oil generally and Chevron specifically—and, presumably, the Monopoly Man-looking ass billionaires who I imagine greedily rubbing their hands together while their conglomerates profited from their new Constitutional right to The Benefit of the Doubt—it was also a win for the administrative state and judicial deference.
But Emily! Isn’t the “administrative state” really just the deep state???
No, but let’s unpack that logic, shall we?
Why In the World Should I Care About This?
And just like that…after I spent all that time explaining Chevron deference, I now have to explain why it was overturned. As I mentioned in the intro, the concept of Chevron deference went out the window at the end of June this year when SCOTUS ruled in Loper Bright Enterprises v. Raimondo that “courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority. Courts may not defer to an agency interpretation of the law simply because a statute is ambiguous” (X).
Essentially, an Edit>Undo of the decision in Chevron. But why?
The exact machinations of the case are not as important as who decided it, how they came to that conclusion, and what this could mean for our system of checks and balances going forward.
To start, I’ll give you a single second to guess who on the Supreme Court decided an opinion I’m talking shit about and who dissented…ready?
In their ruling, SCOTUS argued that Chevron deference actually violated the Administrative Procedure Act (APA) of 1946 which “requires courts to ‘decide all relevant questions of law’ when reviewing agency actions” (X):
Chevron was based on a flawed assumption that Congress intends to delegate interpretive authority to agencies whenever a law is ambiguous. This assumption doesn't reflect reality and goes against the traditional role of courts. Chevron has been difficult to apply consistently and has led to confusion in lower courts. It has also been gradually limited by subsequent Supreme Court decisions.
Thus, Chevron should be overruled because it contradicts the APA, is based on faulty reasoning, has proven unworkable in practice, and hasn't created the kind of settled expectations that would justify keeping it in place. However, this decision does not necessarily overturn the specific outcomes of past cases that used Chevron. Those outcomes would need to be challenged separately (X).
What this means is that this ruling is not going to have the kind of immediate effects on our daily life that decisions like Dobbs v. Jackson Women's Health Organization did. Federal agencies are not going to stop working and/or spontaneously combust overnight. What this decision did do is remove a protective measure that may become significant in the coming years.
I say this knowing it’s incredibly hard to care about an ambiguous, eventual threat, especially when there are other more tangible and pressing matters to attend to first. But I wanted to talk today about Chevron deference (or the lack of it thereof) because it does unfortunately play a role in the ongoing conversations about Project 2025.
Now, I don’t want to fearmonger because what good will that do any of us? However, I do want to remind everyone that a major goal of Project 2025 is to gut or abolish several government agencies, including the EPA. So removing these agencies’ ability to self-govern when there is no clear directive and replacing it with mandatory judicial oversight or congressional control is, in fact, a great first step towards achieving that.
As John Oliver explained in his episode on Project 2025 a bit more aptly than I did in my piece(s) on the subject,
very basically, there are two kinds of federal employees. The first group are merit-based career positions. These jobs tend to be experts, administrators, and support staff that do the important work of keeping the government running. It could be an engineer at NASA, a nurse at the VA, or a railroad safety inspector at the Department of Transportation. Workers like that have robust employee protections, meaning they can’t be fired for political reasons because their jobs aren’t political. That way, they can work over many administrations, gaining the kind of extensive experience that the government needs to function.
The second group consists of political appointees, like cabinet secretaries and those under them. They are hired by a new administration to ensure the campaign promises of the new president are being worked on, and they tend to leave when that administration does. There are about 2 million career federal employees and only about 4,000 political ones who change depending on who is in charge…
Anyway, during Trump’s first term, he got frustrated by the fact that so many of the career government employees seemed to be undermining him by telling him things he wanted to do were illegal or that things he said were wrong or, you know, testifying publicly about the laws they’d seen him break. But Schedule F would fix all of that. Basically, it’s a new designation that would reclassify around 50,000 career civil servants as political appointees, meaning they wouldn’t have civil service protections from getting fired, and whoever replaces them could be hired on loyalty, not on merit. (X).
Oliver then shows a clip of Russ Vought, a former Director of the Office of Management and Budget, explaining that the reclassification
‘doesn’t mean you’re going to get fired tomorrow, but that does mean that you are now working for the president of the United States. You’re not working for your own institution or your own institutional benefits…there’s this view for a hundred years that agencies should be independent of the president. And some of them are really independent under statute, and some of them just want to call themselves independent. All of it’s unconstitutional…’
If Kamala Harris is elected in November, the loss of Chevron deference will likely just be an inconvenience for courts around the country and perhaps for Congress as they’ll need to work a little harder to be much more explicit and literal in their legislation. If Donald Trump is elected, not only is it now unconstitutional for civil servants employed by federal agencies to use their expertise to make their own decisions, but it will also likely cost them their jobs if they should try to say such.
The long and short of it is this: even if our system of checks and balances is enough to initially block the worst objectives of Project 2025 and a second Trump Administration, decisions like Loper remove democracy’s second line of attack. If you can’t trust the experts who staff these agencies—individuals whose careers are by and large dedicated to public service—you can’t trust your government.
Listen: you would be well within your right to not trust our current elected officials,1 and I am hesitantly positing that there is some merit to the deep state conspiracy theory in that there does appear to be a security surveillance state in America. But the administrative state is absolutely NOT (in no uncertain terms) the deep state or the surveillance state, and it is also not a cabal of lizard people hellbent on working against Donald Trump.
The administrative state is the engine that keeps our democracy running when everyone is watching the debates and the polls and the endless breaking news headlines. It predicts hurricanes and studies diseases and tries to keep us all afloat. Yet, it has been constantly villainized and regulated, and now will inevitably be subjected to the whims of Congress and the courts.2
I don’t have a solution here which seems to be par for the course at the end of our weekly chats as of late. But for one thing, I kept hearing about this “Chevron deference” thing over the summer and wanted to spend some time looking at it with all of you, and we’ve definitely completed that objective.
For another, I think a lot about how I wanted to work for the government while I was in high school and how it was my Sliding Doors decision to go to school for English and history instead. I wanted to make this country a better place in a forward-moving and thinking fashion rather than drag it kicking and screaming back to some regressive, imaginary past.
Developments like the overturning of Chevron are small in the immediate moment and complicated to such a degree that no one really wants to waste their time reading about it (which you’ve spent approximately 15 minutes doing, according to Substack). But we’ve seen enough such cases that I’m nervous this is another harbinger of our backslide into something bad—a country worse off than the one in which I, for a brief and fleeting second, agree with the Chevron Corporation.
As I mentioned last week, I recently discovered a new social news app called Volv that consolidates important, viral, and interesting content from around the web into easily digestible 9-second stories. In the age of doom-scrolling, it's a place to consume quality news content you might not ever read otherwise. Volv also wants to support journalists and writers by allowing them to claim a verified channel where they can publish 9-second article summaries of their content—and obviously I'm a big fan of that.
Because I refuse to leave my influencer era, I’m excited to share that E4P readers get a month of Volv Premium when you use code VOLVEM. Don’t say I never did anything for y’all <3
You’d be surprised that there are still more elements of my thesis I haven’t discussed here, but I did a good chunk of research on how conservatives sought to “game-ify” politics rather than act based on what their constituents elected them to do, and how that became the way all politicians now tend to behave.
I would be remiss not to mention Skidmore deference which is still in place and is the precedent that “a federal court yields to a federal agency's interpretation of a statute administered by the agency according to the agency's ability to demonstrate persuasive reasoning” (X). Chevron deference, to be sure, was preferred because it allowed agencies to act without seeking approval first, but it’s nice, I guess, that Skidmore deference…is there?