Seismic Shift in Regime Power?
SCOTUS Overturns Chevron Deference
With President Biden’s abysmal debate performance dominating the news cycle, a landmark decision by the U.S. Supreme Court nearly slipped under the radar—one that could fundamentally reshape the balance of power in America. In a historic 6-3 decision in Loper Bright v. Raimondo, the Court dismantled the nearly 40-year-old Chevron Deference, altering the landscape of how executive agencies wield authority. This ruling reclaims power from the so-called Deep State, the administrative regime that has long been an unaccountable force undermining democratic governance, and returns it to the people, their elected representatives, and the judiciary.
What Was Chevron Deference?
In Chevron U.S.A. v. Natural Resources Defense Council (1984), the Court held that as long as an executive branch agency’s interpretation of an ambiguous or open-ended statute is reasonable, their actions based on that interpretation must not be interfered with by the courts. If federal law did not specifically speak to an issue, the courts were obliged to defer to agency opinion rather than provide their own interpretation.
In other words, under Chevron, backed by later precedent like National Cable & Telecommunications Ass’n v. Brand X Internet Services (2005), the courts were limited to a sort of agnostic rubber-stamping function, even if agency interpretation changed over time, so long as said interpretation was arguably within a statute’s range of construction, which, of course, agencies always argued that it was. Given a near carte blanche approval to do whatever they want as long as they can argue it in court with a straight face, the alphabet agencies began essentially writing their own laws in the form of agency rules with little input from Congress and little pushback from the courts.
Do you remember Senate Majority Leader Chuck Schumer’s infamous warning to Donald Trump that the intelligence cabal has “six ways from Sunday at getting back at you”? The threat highlighted the reality that the administrative regime, empowered by the Chevron Deference, could eliminate non-compliant individuals from public roles, consequently ruining their careers. Forty years of Chevron had turned the agencies into basically a fourth branch of government that possessed even more power than the President they technically report to.
Since 1984 (ironically), the bedrock of our legal system has been muddied by unelected bureaucrats wielding ambiguous laws like blunt instruments. For decades, government agencies have had the power to interpret laws however they saw fit, thanks to Chevron Deference. This deference meant that courts would fall back on the agencies’ so-called expertise, trusting their interpretations as long as they seemed reasonable.
Initially, Chevron was championed by conservatives because it restricted an activist judiciary via a conservative executive administration battling the courts, especially lower courts. Even the late Justice Antonin Scalia defended Chevron. Things have obviously changed. Administrative agencies function, in some cases, autonomously, and increasingly envelop Constitutional legislative function. They are bigger than ever, inserting themselves into nearly every aspect of American life, as even Chief Justice Roberts acknowledged in Arlington v. FCC (2012).
Today, the agencies and their administrative rules are a subset of a broader power structure critics have labeled Managerial Liberalism, the Administrative Regime, or the Fourth Branch of government. Curtis Yarvin refers to it as “the cathedral,” “a decentralized network of organizations and individuals responsible for manufacturing a cultural consensus.” In The Total State, Auron MacIntyre critically examines the modern administrative state’s (more comprehensive than governmental agencies, yet including them) centralization of power, which undermines traditional political processes and norms.
What Did the Supreme Court Just Do?
In a 6-3 decision on June 28, the Supreme Court overturned the Chevron doctrine. According to NPR, “The U.S. Supreme Court on Friday undid decades of regulatory law, making it far more difficult for federal agencies to issue rules and regulations that carry out broad mandates enacted by Congress.” This pivotal decision shifts lawmaking authority from faceless bureaucrats back to our elected officials and interpretive authority back to our courts. Judges now directly interpret laws passed by the legislature, ensuring that agencies abide by our elected lawmakers’ intent.
For too long, our legal interpretation was bifurcated depending on where the law was coming from:
1. Interpretation of Laws Written by Congress: Courts judged laws based on how they comport with the Constitution, accounting for text, history, and tradition; striking down any law that is not Constitutionally permissible.
2. Interpretation of “Laws” Written by Agencies: Unelected bureaucrats decided whether liberties needed curtailing for the “public good,” wrote “laws” to cover the gap whenever Congress did not specifically give them direction, and the Courts would rubber stamp everything they did because of Chevron.
In Loper Bright, the Supreme Court eliminated the second category. Essentially, the Supreme Court said to trust the people and their representatives, not the “experts.” Bureaucratic officials should no longer dictate what is good for us by manipulating courts with questionable statistics and asserting their authority.
Ben R. Crenshaw commented, “All of this, of course, is downstream of earlier decisions (Humphrey’s Executor, 1935) that declared agencies to be quasi-judicial, quasi-legislative entities, basically allowing Congress to delegate law-making and statutory deliberation to non-elected bureaucratic departments. Congress could be the fact-finding/deliberative body they farmed it out.”
The Fishy Case of Agency Overreach
The Loper Bright case encapsulates how tyrannical the agencies have become. In 1976, Congress passed the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which tasked the National Marine Fisheries Service (NMFS) with regulating fisheries to prevent overfishing. NMFS had been accomplishing that objective by providing observers on boats to ensure that catch limits were not being exceeded. However, when money was short, NMFS began requiring fisheries to pay for third-party, government-approved observers, which cost up to $710 per day.
Loper Bright Enterprises is a fishery and was, like anyone would be in their position, unhappy with the excessive charges forced upon them by an unaccountable federal agency. They sued, arguing that the law passed by Congress “does not authorize NMFS to mandate that they pay for observers required by a fishery management plan.” Thankfully, they won. That federal agencies were able to invent and enforce crushing financial burdens on businesses like this for 40 years is a tremendous injustice.
Not So Fast: The Roberts’ Caveat
However, conservatives must be wary of one caveat in the Loper Bright decision. Chief Justice John Roberts is a moderate whose primary concern is usually the stability of institutions (even those actively destroying the American way of life). As the author of the majority opinion, he was careful not to burn down the administrative regime’s house. He left a loophole through which they could still exert immense arbitrary control over the American people if Congress tells them to.
While the ruling removes the ability of agencies to turn any legal ambiguity into a blank check to do whatever they want, it expressly permits Congress to delegate immense amounts of lawmaking authority to them. Roberts writes:
“In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes expressly delegate to an agency the authority to give meaning to a particular term. Others empower an agency to prescribe rules to ‘fill up the details’ of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as ‘appropriate’ or ‘reasonable.’ When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, ‘fix[ing] the boundaries of [the] delegated authority,’ and ensuring the agency has engaged in ‘reasoned decision making’ within those boundaries. By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.”
Suppose Congress does not do its job by writing specific laws and instead opts expressly to delegate authority to the agencies. In that case, we will continue to suffer under the Chevron regime, just by a different name. We need to hold our Congress accountable for doing their jobs rather than allowing them to pass the buck to bureaucrats who do not answer to us.
The Most Important Supreme Court Decision in 50 Years?
While the Dobbs decision overturning Roe v. Wade has captured public attention, the Chevron ruling, should Congress respond by doing its job, represents a seismic shift in agency power. It curtails bureaucratic overreach and restores interpretative and legislative authority to judges and lawmakers, promoting a more balanced governance. This decision could have a massive impact on government operations.
Government agencies will now face greater scrutiny and accountability, reducing their unchecked power. Their decisions can be more easily challenged in court, ensuring power is exercised responsibly and justly. No longer can these agencies make final decisions on the fly. Instead, judges will be able to ensure that laws are applied as intended by our elected Representatives. Agencies prefer vagueness and open-ended legislation to grant them sweeping power. This will (should) no longer suffice. They can no longer get away with making laws whenever there is ambiguity.
As Senator Mike Lee said, “With Chevron’s demise, it’s time for Congress to re-learn how to write real laws. For decades, Congress has relied on a lazy technique. Rather than enacting *real* laws, Congress has delegated much of its lawmaking power to unelected, unaccountable bureaucrats. In other words, rather than making laws, Congress has in many instances made … other lawmakers.”
Expect a surge in court cases challenging government agency decisions, resulting in far-reaching repeals and transformation against bureaucratic overreach.
Flipping the Switch on the Shadow Government
The federal agencies have become the fourth branch of government and arguably the most powerful because they answer to no one. They do not answer to voters. They are supposed to answer to the President, but, in practice, it is nearly impossible for a President to fire them, and they all know they can simply wait out an elected official’s tenure, looking to the next pawn in their game. Further, until now, they did not answer to the courts. The agencies were essentially a shadow government, interpreting, making, and enforcing “laws” with little accountability.
Power without accountability is a recipe for disaster.
If I have learned anything in six months as an Oklahoma State Senator, it is that light must be shed on government operations. Too often, a small cadre in a closed-door meeting decides whether to kill or pass a bill. If it gets the death sentence, it dies quietly without even a hearing or a vote. If the powerful few greenlight the bill, it is rubber-stamped by 95 percent of the caucus. Very few of the actual political deliberations happen out in the open, where the people can have input or even know what is happening.
Unaccountable government is usually bad government. That is why my former executive assistant Brady Butler and I wrote the Golden Rules to make the Oklahoma legislature more transparent and accountable, and it is an example of why the overturn of Chevron is such a cause for celebration.
Real-World Impact: Vaccine Mandates
Consider the contentious issue of vaccine mandates. Under the Chevron regime, agencies could broadly interpret laws to enforce mandates as they saw fit. When Biden’s Occupational Safety and Health Administration (OSHA) mandated vaccines for private sector workers, appellate courts allowed it, with many explicitly citing Chevron.
One Judge wrote,
“Reasonable minds may disagree on OSHA’s approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities… This limitation is constitutionally mandated, separating our branch from our political co-branches. ‘[F]ederal judges–who have no constituency–have a duty to respect legitimate policy choices made by those who do.’ Chevron U.S.A., Inc. v. NRLB.”
Now, any such mandates must be clearly defined by our elected lawmakers and cannot be arbitrarily imposed by agencies. This ensures that the rules governing our lives are crafted by those we elect, not by unaccountable bureaucrats.
And it’s not just vaccines. Federal agencies cannot now lean on Chevron to funnel abortion and sex and gender insanity into law via incoherent interpretations and applications of Title VII and Title IX.
More generally, post Loper Bright, no longer will agencies be enabled to substantively alter or supplement law apart from Congress and, in turn, Congress will be discouraged from intentionally crafting sloppy, open-ended legislation. In other words, we have returned to more direct adherence to Article I of the Constitution, not to mention Article III’s designation of interpretive power to the judiciary, not the executive–something even the Administrative Procedure Act acknowledges.
The court may not have asserted non-delegation doctrine definitively, but it has taken a step in the right direction, back toward Constitutional balance by recalling that “agencies have no special competence in resolving statutory ambiguity,” much less Constitutional authority to do so. There was also indication from the Loper Bright court that the death of Chevron would not necessarily be applied retroactively to cases decided under the assumption of Chevron.
There are always tradeoffs in these situations. Inviting courts into every executive decision comes with problems, but so does allowing unelected bureaucrats to have a legislative blank check. After Loper Bright, agencies must be more intentionally and carefully ground their rulemaking in the language and structure of the statutes themselves. That is, of the laws passed by an elected, representative legislature. Precision and consistency will be imposed upon both Congress and the agencies in a new way going forward.
Fundamentally, precise laws better preserve justice, accountability, and predictability. As James Madison noted in Federalist No. 62,
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be to-morrow.”
Conclusion
The Supreme Court’s decision to overturn Chevron Deference marks a pivotal moment in American jurisprudence and the balance of power, reinforcing the principles of clear and accountable legislation. By reining in the unchecked power of government agencies, the Court has restored the rightful role of judges and lawmakers in creating and interpreting laws. This decision could profoundly impact how our government operates and ensure that the laws affecting our daily lives are just, clear, and fairly applied.The growth of the administrative regime over the past 40 years has arguably been the primary mechanism by which we have been tyrannized and our way of life as Americans has been attacked. The Loper Bright decision was step one in the critical mission of taking down the administrative Leviathan.
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