In the landmark 1984 case Chevron v. NRDC, the Supreme Court established the principle of judicial deference to administrative agencies’ interpretation of statutes they administer, known ever since as “Chevron deference.” The case was decided in 1984 and has since become one of the most influential and frequently cited decisions in U.S. administrative law.
This term, the U.S. Supreme Court will decide a case in which fishing companies are challenging a rule set by a federal agency. The justices could potentially take this opportunity to overturn or significantly narrow Chevron.
The question revolves around whether such deference is required if a law does not address controversial powers expressly but narrowly granted elsewhere in a statute, and there is no ambiguity in the statute. The Supreme Court agreed to reconsider its ruling in Chevron after considering the case at five consecutive conferences.
If the court were to overturn Chevron, it could have several important legal and practical implications.
For one, it would shrink the power of federal agencies such as the EPA to set rules and enforce environmental protections. And without the shield of Chevron deference, private businesses might have more power to challenge environmental regulations, potentially putting profits ahead of environmental protection.
Without Chevron, the ability to interpret and enforce laws effectively could also be hindered, potentially leading to uncertainty, inconsistency and circumvention of vital protections. Limiting the discretion afforded to agencies to reasonably interpret laws could effectively transfer that authority to judges.
Third, the Lawyers’ Committee for Civil Rights Under Law argues that Chevron is vital for maintaining the separation of powers between branches of government and empowering agencies to create and enforce regulations that provide clarity and guidance for individuals, organizations and courts in order to uphold civil rights laws passed by Congress.
Undoing Chevron could also threaten the Biden administration’s climate agenda, as Chevron has been used by both Democrats and Republicans to defend environmental, labor and other administrative rules.
Were the Supreme Court to overturn Chevron, it would have a massive destabilizing effect on the legal system because of the sheer weight of the decision. As attorney Adriana Gonzalez observed, “A 2014 Columbia Law School faculty publication claimed that Chevron had been cited in close to 15,000 judicial opinions; it is closer to 20,000 today, making it one of the most important decisions in the history of the judiciary.”
Ultimately, there is an even more potentially destabilizing impact of the upcoming Raimondo case if the court uses it as a vehicle to overturn or dramatically limit Chevron, and that is the impact upon the court itself.
It is a given that several Supreme Court justices, including Justice Clarence Thomas, have been critical of the Chevron doctrine in recent years. As recently as this month, there have been calls for Justice Thomas to recuse himself from Raimondo due to what many are characterizing as a conflict of interest.
The core of the argument is that it would be impossible for Justice Thomas to be impartial in Raimondo, not just because he has been so critical of Chevron but because he helped fundraisers for the Koch brothers’ attorneys who are representing the plaintiffs in the case.
So the best-case scenario for the Supreme Court here might be a self-inflicted wound that could even further deepen the public opinion abyss into which the court has either fallen (or self-launched, depending upon your perspective).
As an aside, Justice Ketanji Brown Jackson has already recused herself from the case, likely due to her participation in oral arguments at the Circuit Court level.
Raimondo will be argued in the fall, with a decision to follow in mid-2024 — almost certainly right at the end of the court’s annual term, given the case’s gravity.
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst for Esquire Digital and Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.