Four justices appeared absolutely determined, on Wednesday, to overrule one of the most consequential Supreme Court decisions in the Court’s entire history.
Chevron v. National Resources Defense Council (1984) is arguably as important to the development of federal administrative law — an often technical area of the law, but one that touches on literally every single aspect of American life — as Brown v. Board of Education (1954) was important to the development of the law of racial equality. Chevron is a foundational decision, which places strict limits on unelected federal judges’ ability to make policy decisions for the entire nation.
As Justice Ketanji Brown Jackson said during Wednesday’s arguments, Chevron forces judges to grapple with a very basic question: “When does the court decide that this is not my call?”
And yet, four members of the Supreme Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — spent much of Wednesday’s arguments in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce speaking of Chevron with the same contempt most judges reserve for cases like Plessy v. Ferguson (1896), the pro-segregation decision rejected by Brown.
The open question is whether the Court’s four most strident opponents of this foundational ruling can find a fifth vote.
None of the Court’s three Democratic appointees were open to the massive transfer of power to federal judges contemplated by the plaintiffs in these two cases. That leaves Chief Justice John Roberts and Justice Amy Coney Barrett as the two votes that remain uncertain. To prevail — and to keep Chevron alive — the Justice Department needed its arguments to persuade both Roberts and Barrett to stay their hands.
No. What you are describing is how deference should work, not how it actually works. If it worked the way you say it does, I would have no problem with it. We are essentially in agreement on what should be happening.
Chevron deference is a two-step test. The first step is whether the statute explicitly authorizes the agency’s actions. If not, the second step asks whether the agency’s policy could conceivably arise from the statute.
The “reasonable” and “not arbitrary” questions you’re talking about only arise after those two steps have been taken. Chevron Deference says that the agency - not the court - is solely responsible for answering those questions.
With net neutrality, the courts ask whether Congress explicitly intended to suspend Net Neutrality, and concludes they did not explicitly require it. They next ask whether suspending net neutrality is a power conveyed to the FCC by statute. Indeed, the FCC should and does have that power. The plaintiff then wishes the court to ask whether the suspension of net neutrality is fair, reasonably, appropriate, not arbitrary, necessary and proper, etc. But, the court points to Chevron Deference and tells the plaintiff that only the agency can answer such questions.
Whether we agree that this is a fair and accurate summary of Chevron Deference, we can agree that the system I just described is not appropriate, while the system you described is appropriate. The fundamental difference between the two systems is whether the courts should or should not be empowered to judge the “reasonableness” of the agency’s interpretation.
The agencies are packed with right wing directors and executives every time we have a GOP president.
While the courts are packed with right-wing judges, plaintiffs in major cases largely avoid them by “shopping” for the judges they want: they can raise their questions in courts known to be friendly to their positions.
You are not correct.
https://www.law.cornell.edu/wex/chevron_deference
Yes. The the right wing courts will uphold their interpretations and block liberal interpretations, so what will be left is only the conservative interpretation regardless of the president.
Everything except your first sentence is accurate. But if that is your rebuttal, you have failed to understand my argument. I’ll try to restate it for clarity.
The test is whether the statute reasonably conveys the power to the agency. Did Congress mean to convey that power to the agency? Did Congress intend for the FCC to have the power to suspend Net Neutrality? Did Congress intend for the NHTSA to have the ability to enact CAFE standards? Did Congress intend for the Bureau of Land Management to have the ability to slaughter entire herds of cattle?
Well, yes, they did. Should certain specific circumstances arise, any of these may become
reasonable“necessary and proper” reactions to those circumstances.Chevron Deference is the idea that once the courts recognize that the agency is “reasonably” empowered to act, the court may not question whether their specific actions are “necessary and proper”. The court can only question whether the agency has the power to act; it cannot question whether that action is appropriate for the circumstances. Only the agency itself is allowed to question whether the action is “necessary and proper.”
So when corrupt FCC commissioners decide to improperly exercise the powers granted to them by Congress, Chevron Deference suspends the constitutional remedy: we cannot petition the court for redress of this grievance.
I still don’t think you get what Chevron Deference does, but whatever. I DO NOT WANT the federal judiciary to decide what is necessary and proper. Those are policy questions for the elected administration and congress, not unelected judges.
Your questions make no sense. Did congress intend for the FCC to suspend Net Neutrality isn’t the question, because congress never directly imposed Net Neutrality. FCC rules on Net Neutrality derived from classifying ISPs as common carriers under Title II of the 1934(!) Communications Act. The question that would go to the courts is did that 90 year old law intend to regulate the internet to begin with? Plenty of conservatives will say no.
You seem to be under the impression that laws have no ambiguity and that congress’s intentions are clear. They are not. The original case we get Chevron Deference was with regard to the Clean Air Act talking about “stationary sources” of pollution, a term not defined in the law. The EPA originally interpreted that as each source at a particular plant, requiring new licenses for every addition. The Reagan EPA changed the interpretation to a stationary source as a whole plant, and thus allowed expansion without new permits if emissions would not increase. Both frankly are reasonable interpretations. So the case ruled they should defer to the agency rather than tackle a policy question.
You may think we have facts on out side, but all the judges appointed by W Bush and Trump, of which there are legion, will not side with facts, they will bend the ambiguity to stop any liberal policy they disagree with.
Your understanding of my question is faulty. I did not ask if Congress intended for the FCC to suspend net neutrality. I asked if Congress intended for the FCC to have the power to suspend net neutrality. The answer is yes, that power is well within the FCC’s charter.
Your position here directly contradicts virtually all of Article III, and effectively strips the people of their power to petition for redress of grievances. Your position is constitutionally invalid. Constitutionally, the court’s power to make this determination is a vital check on the other two branches. Your unhappiness with the current composition of the courts is not a sufficient justification for suspending this check.
The answer is not unambiguously yes! Again, net neutrality is based on a law decades older than the internet. It would be trivial for a judge to say the FCC doesn’t even have the power to enforce Net Neutrality at all!
And it does not override Article III. Again, all regulations have to reasonably follow the law. That is the line for the courts, are they following the law or not. Going beyond that, answering policy questions, contradicts Articles I and II.
You are far too confident judges will rule in your favor.
Whether they rule in my favor or not is irrelevant to the issue. They may very well rule against me. The relevant factor is that a separate entity should be empowered to review the decisions of the agency; the agency should not be judging themselves. That is how the Constitution was set up. Chevron weakens that standard.
When environmental groups sue the NHTSA for their ridiculously weak and counter-productive CAFE standards, they courts should be allowed to say: “Your CAFE standards are supposed to be reducing total vehicle emissions. Instead, they are driving manufacturers to stop producing smaller, more fuel efficient vehicles, and shift toward larger, less fuel-efficient vehicles that can more easily comply. Your standards are driving an increase in total emissions, and are having an effect opposite to that of your agency’s mandate. You have 90 days to either develop new standards to be enacted one year from the date of this letter, or have Congress ratify your current standards as law. Do your job, or I will have Plaintiff do it for you.”
Your CAFE suit would never succeed, and there is no way the courts would allow the plaintiff to craft a new standard.
Also, in my opinion, Chevron Deference allows review to determine if the standards reasonably meet the law without allowing courts to dictate policy. We just fundamentally disagree.
The hypothetical scenarios I presented include the assumption that the plaintiffs have conclusively proven incompetence or malfeasance on the part of the agency, and offered a remedy to correct them. Under Chevron, these suits would fail, because the court is not allowed to consider whether the agency’s actions are effective, but must instead defer to the agency’s own evaluation of their effectiveness.
That my suit would fail demonstrates the problem.