The Supreme Court reverses course on Chevron deference.
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About that debate...
On Friday, we published a special edition breaking down the first presidential debate between Joe Biden and Donald Trump. Our editorial team shared their thoughts on each candidate’s high and low points, the night’s most revealing moments, and who came out on top.
Isaac, Managing Editor Ari Weitzman, and Editor Will Kaback also got together on the Tangle podcast for a candid discussion about what the debate could mean for the presidential race and whether it is likely to produce any major shakeups ahead of each party’s nominating conventions this summer.
You can read the special Friday edition here (paywalled for non-members) and listen to the podcast here.
Quick hits.
- The Supreme Court ruled that former U.S. presidents cannot be prosecuted for official acts, granting former President Trump some immunity for actions relating to January 6. The case returns to lower courts to decide whether Special Counsel Jack Smith’s election interference case against Trump can continue. (The ruling)
- Additionally, the court kept a hold on efforts in Texas and Florida to limit how social media platforms regulate content posted by users, returning the cases to lower courts. (The decision)
- President Biden and his family met at Camp David over the weekend amid speculation over the future of his campaign following Thursday’s presidential debate. Biden’s family reportedly criticized the president’s top advisers for his preparation, but Biden has thus far resisted calls to fire any of his staff. (The latest)
- Hurricane Beryl — the first hurricane of the 2024 season — strengthened into a Category 4 storm on Sunday as it moves toward the Caribbean. (The storm) On Thursday, the National Oceanic and Atmospheric Administration warned that the United States could face one of its worst hurricane seasons in two decades. (The warning)
- France’s conservative National Rally party won the country’s first-round parliamentary election on Sunday, setting the stage for a run-off this week that could determine legislative control. (The results)
Today's topic.
The end of Chevron deference. On Friday, the Supreme Court overruled the court’s 1984 decision in Chevron v. Natural Resources Defense Council, which deferred to the judgment of federal agencies in interpreting statutory text to create regulations based on ambiguous laws. The 6-3 ruling fell along ideological lines, with the court’s six Republican-appointed justices in the majority. The decision is expected to shift the balance of power between the executive and judicial branches while compelling Congress to more specifically address policy issues when creating new laws.
Back up: The ruling addressed two cases — Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce — brought by fishermen in New Jersey and Rhode Island challenging a 2020 National Marine Fisheries Service (NMFS) rule requiring herring fishermen to pay for government-mandated observers who track their fish intake (the fishermen were eventually reimbursed for the costs, and the observation program ended in 2023 due to a lack of federal funds). The challengers asked the court to weigh in on both the validity of the NMFS rule and the Chevron precedent undergirding it. During oral arguments, court watchers predicted the court would rule in favor of the plaintiffs on both questions.
You can read our previous coverage of these cases — including the history of Chevron and a recap of oral arguments — here and here.
Writing for the majority, Chief Justice John Roberts determined that Chevron was inconsistent with the 1946 Administrative Procedure Act (APA), which outlines how federal agencies can propose and establish regulations and offers guidelines for the courts to review those regulations. Roberts said that the APA directs courts to “decide legal questions by applying their own judgment” and “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference.” Thus, courts retain the final say on whether an agency's regulation is compatible with the law. “Chevron is overruled,” Roberts wrote.
Roberts also rejected the argument that agencies are better suited than courts to parse ambiguities in federal law, even on technical or scientific questions. He further dismissed the notion that stare decisis — the legal principle that courts should defer to precedent when deciding a case with similar legal issues to past cases — should compel the court to uphold Chevron. Roberts said the Chevron doctrine was “unworkable” because it provided no guidance on how to assess the ambiguity of a law. While the court’s decision doesn’t overturn past cases that relied on Chevron, the court is expected to rule on Monday on a case covering the statute of limitations on challenges to federal agency actions; a ruling for the plaintiffs could undercut past decisions supported by Chevron.
Justice Elena Kagan dissented and was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson (Jackson recused herself in Loper-Bright, as she had heard oral argument in the case while she was still a U.S. Court of Appeals judge). Kagan characterized Chevron as “the warp and woof of modern government, supporting regulatory efforts of all kinds” and suggested that the court’s decision would create a “jolt to the legal system.” She also disagreed with the majority’s assertion that the ruling would rebalance the branches of government; instead, Kagan said, it gives the courts “exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law.”
Although Chevon was initially supported by Justice Antonin Scalia and other conservative legal experts, it was later maligned by conservative activists who saw the doctrine as a tool to justify sweeping agency rules on the environment, consumer and workplace safety, financial oversight, and other policy areas. In recent years, the Supreme Court has chipped away at federal administrative power, striking down the Biden administration’s moratorium on evictions in 2021 and its plan to cancel $400 billion in student debt in 2023.
Today, we’ll explore arguments about the court’s decision from the left and right. Then, my take.
What the left is saying.
- The left opposes the ruling, calling it the latest common-sense precedent to be struck down by the conservative court.
- Some say the decision will have wide ranging consequences for important government functions.
- Others suggest the court is brazenly disrupting the balance of power in government.
In The Washington Post, Ruth Marcus wrote “the justices toss yet another precedent, delighting conservatives.”
“Administrative law doesn’t pack the emotional punch of abortion access or LGBTQ+ rights, but the day-to-day impact of this seemingly arcane issue is profound. The fundamental question in Friday’s ruling boiled down to: ‘who decides,’ courts or agencies? The conservative majority’s answer — courts — affects everything from clean air to drug safety to student loans, the broad landscape of government regulation. And that power matters more than ever now that Trump, who had appointed 28 percent of federal judges by the time he left office, has the prospect of naming more in a second term.”
“Every law setting out regulatory authority is going to contain gaps and ambiguities. Agencies are best suited to interpret the statutes under which they operate, and to deal with the myriad intricate and technical questions that inevitably arise. For their part, courts aren’t supposed to be policymakers or best-positioned to make these expert judgments,” Marcus said. “Without the restraining effect of Chevron deference, it’s not hard to imagine conservative litigants and corporations racing to friendly jurisdictions to bring challenges to agency action. In a Republican administration, the same could happen, just the other way around.”
In The Daily Beast, Shan Wu said reversing Chevron “will undo many rights and protections for us all.”
“The reversal of the Chevron case by the young Turks, angry old men, and Chief Justice John Roberts who make up the Supreme Court’s conservative majority checked off an important box in the Federalist Society’s checklist for reshaping America,” Wu wrote. “It might seem like common sense to believe that an agency like the U.S. Fish and Wildlife Service would know more about, say, the proper classification of the Western gray squirrel—the example given by dissenting liberal Justice Elena Kagan—than a rando judge. But common sense never stands in the way of the revolution.”
“Perhaps, it is some kind of multi-generational conservative trauma passed down since the New Deal that motivates their obsession with dismantling the protections of the administrative state. But like any trauma, the effects can be illogical and have far-reaching, destructive consequences,” Wu said. “The reversal of Chevron assures the Roberts court of its place in history as a court that seeks to consolidate the reins of power over Americans in nine unelected public officials. But its place in history will also include the accomplishment of driving public confidence in the high court to record lows that may ultimately fuel reform of the Court itself.”
In The American Prospect, Hassan Ali Kanu asked “who’s gonna check the Supreme Court?”
“The unmistakable theme of this Supreme Court term has been raw power, and just how much of it the high court has in our particular system of democracy, compared with the other branches,” Kanu wrote. “The Loper Bright ruling furthers a decades-old goal of the conservative movement to gut the so-called ‘administrative state,’ to kneecap federal regulation on businesses, in plain terms. And it’s a neat example of the Court’s power: not only are the justices empowered to define the shape and scope of executive branch power, they are in fact able to accrue that power to themselves, simply by declaring it so.”
“In recent years, the Court has had no compunction about flexing or stretching the bounds of its immense practical powers in increasingly brazen ways. By now, that point is so glaringly clear that perhaps the most spot-on descriptions come from the conservative justices’ liberal colleagues,” Kanu said. “The way the court exercises its power certainly suggests that the six justices in the conservative majority might just be the supreme rulers of the United States, at least as a practical matter… Congress and the President—you know, the other co-equal branches—might want to do something about that.”
What the right is saying.
- The right supports the ruling, arguing that it returns the power to interpret laws back to its proper place: the courts.
- Some say the decision is the most important of the court’s current term.
- Others say Congress must now assert its power to legislate to further tamp down the administrative state.
National Review’s editors wrote “the administrative state is put back in its constitutional place.”
“Ending Chevron has been a long-term project of constitutionalists. The doctrine, minted only in the mid 1980s, never sat comfortably with the traditional power of the judiciary to, in the words of Chief Justice John Marshall, ‘say what the law is.’ Nor was it consistent with the Administrative Procedure Act, passed in 1946, which provided that a court reviewing agency action must ‘decide all relevant questions of law’ and ‘interpret’ the relevant ‘statutory provisions,’” the editors said. “Neither of these decisions prevented the agencies from exercising powers explicitly granted by Congress, or from pursuing cases that could stand up in court. So the alarms about crippling administrative power are overstated.”
“Nor were these decisions, as the Court’s liberals would have it, a judicial ‘power grab’... Loper Bright restores the proper primacy of Congress,” the editors added. “All of this is not only good but necessary and healthy for a democratic and constitutional system. If it provokes in Congress the habit of writing laws, and in agencies the habit of obeying them, all the better. Agencies are but creatures of law, and law is but a creature of the sovereign people’s right to self-government — a government of laws, and not of men.”
In City Journal, Ilya Shapiro argued “overturning Chevron is the story of this Supreme Court term.”
“Originally meant to streamline the Reagan administration’s deregulatory agenda in the face of judicial obstruction, the doctrine wound up enabling a ratcheting up of bureaucratic bloat. Good for the Court to recognize that its 40-year-old experiment in rebalancing the relationship between administration and judicial review has failed. And indeed, the Court itself hasn’t used the doctrine in nearly a decade,” Shapiro said. “Chevron led to agency overreach, haphazard practical results, and the diminution of Congress. Though intended to empower Congress by limiting the role of courts, Chevron instead enabled agencies to aggrandize their own powers to the greatest extent plausible under their operative statutes, and often beyond.
“Courts, in turn, have gotten lazy in interpreting statutes. It’s become a vicious cycle of legislative buck-passing and judicial deference to executive overreach,” Shapiro wrote. “As I wrote in an amicus curiae brief, Chevron deference rests on the presumption that Congress won’t overdelegate and that agencies will be loyal agents. But experience has shown that Congress loves shirking accountability, and agencies love pursuing their own interests.”
In Fox News, Sen. Eric Schmitt (R-MO) said the “Supreme Court just defeated Big Government. It’s up to Congress to make it stick.”
“The greatest fear of America’s Founders was government power left unchecked and unaccountable to the American people. In the last 40 years, however, the burgeoning of the administrative state has turned this founding nightmare into a reality. Federal bureaucrats under the guise of purported expertise have been able to wield immense control over the lives of American citizens. These bureaucrats have destroyed small businesses and steamrolled private industries, all while accumulating more power for themselves,” Schmitt wrote. “Fortunately, the Supreme Court corrected this decades-long federal overreach… delivering a huge victory to all Americans being suffocated by crushing government regulation.”
“Given the relative power of parties involved, Loper Bright was a true David versus Goliath case. The fishermen were facing off against a massive and nearly all-powerful bureaucracy. In doing so, they represented the plight of scores of Americans struggling under the crushing weight of government regulation,” Schmitt said. “However, the battle is not yet won. With the Supreme Court rightfully returning authority back to the legislative branch, Congress must not punt this back to the regulatory agencies. It's the duty of our elected leaders in the House and Senate to take on the burden of legislating, just as it was before.”
My take.
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- I’m just as torn as ever on Chevron — the administrative state should be checked, but experts should receive deference.
- On the legal merits, I’m pretty convinced by Roberts’s opinion.
- I hope that Congress is motivated to write more specific laws and that courts will continue to exercise humility when reviewing technical cases, but I’m worried that neither will happen.
We've written about Chevron a couple times before, and I said in both of those editions that I was really torn about the issue. I feel the same today. Our federal government feels vast, with legislators outsourcing much of their work in codifying policy to agencies. At the same time, I get why deferring to agency experts on technical questions is often preferable, especially since some ambiguities in the law are inevitable.
That said, I think it’s useful to apply the same framework we always do when evaluating court cases: separating the legal argument from the decision’s practical effects. So before I get into those effects that are leaving me so conflicted, let’s get into the legal argument.
Here, I’m less conflicted: I think the court’s opinion in these cases is pretty convincing. In his opinion for the majority, Chief Justice Roberts explained why the Chevron doctrine is inconsistent with the Administrative Procedure Act, a law that sets out procedures for federal agencies and instructions for courts to review those procedures. The APA, Roberts argued, “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference.” Furthermore, Roberts made a strong case that granting deference to federal agencies only when statutes are ambiguous is an “unworkable” standard.
In other words, courts are responsible for deciding when regulations are exercised within the rule of law. Chevron deference was just that — a deference given to federal regulators in deciding technical cases under ambiguous law — and there’s nothing in the Constitution or written law that assures or guides it.
Justice Kagan advanced what I think is the best argument for keeping Chevron in her dissenting opinion: that overturning the legal doctrine goes against stare decisis (legal precedent). But when the court is deciding whether or not a way of making legal decisions is constitutional and valid, saying that other courts used that method of making legal decisions is a circular argument. As Gorsuch argued pretty convincingly in his concurring opinion, the deference applied under the Chevron doctrine goes against court precedent in deciding agency powers going back to the 1800s.
“If stare decisis calls for judicial humility in the face of the written law, it also cautions us to test our present conclusions carefully against the work of our predecessors,” Gorsuch wrote. And moving forward, without deference given to federal agencies, I hope the court will extend that humility to matters where they don’t have expertise. But I’m worried that many courts across the country won’t, which brings me to the practical outcomes.
Just a few days before this ruling came down, the Supreme Court decided a similar question in Ohio v. E.P.A. In the initial version of the ruling the court released, the majority made five references to "nitrous oxide" (also known as laughing gas) rather than nitrogen oxide, the compounds that were actually at the center of the case. The court corrected the error after publishing its ruling, but it was precisely the kind of screw up that supporters of Chevron say illustrates the value of leaning on agency experts.
Conversely, the cases brought before the court to challenge Chevron were emblematic of agency overreach. Few people could read about a federal agency forcing a monitor onto a fisherman's boat, then making that fisherman pay the monitor's fee (especially when the fee could reach $700 a day, high enough to undercut their entire business), and feel like it was a fair set up.
And while I remain torn about Chevron being overturned, I do think I have clarity about the system I wish we had: courts giving deference to agencies that in turn are not captured by politics. In truth, I think the court giving that deference on ambiguous technical questions is unambiguously positive, but it just doesn't work in our current system the way it should because agencies too often exert their power based on politics (rather than their expertise).
Of course, the other side of the coin is worrisome, too. Previously, agencies at least had a slight upper hand in defending their recommendations in front of partisan judges, with the weight of Chevron behind them. Without Chevron, that upper hand is gone, meaning voters will have less sway on federal policy (since agencies are beholden to elected members of Congress and the president, while judges are appointed).
With all that said, I have a hard time joining the chorus of concerned voices on the left. I certainly think this ruling could release a firehose of court challenges to longstanding regulation, and I also think it’s possible some judges will make serious errors that could have been avoided with Chevron in place. Yet, at the same time, this Supreme Court has been putting Chevron aside since 2016. And the concept was entirely foreign until its invention in 1984. It's not as if federal agencies will stop interpreting legislation to advance regulations and experts are going to suddenly stop having a voice — they'll still argue their points and brief the courts when necessary, and judges will have to weigh content-matter expertise against their own legal judgment.
To put it more directly: While I'd certainly prefer our judges and courtrooms to defer to topic-specific experts on technical and ambiguous policy questions, I don't think the court system is going to spin into chaos, nor will our laws be impossible to enforce without Chevron in place. It could even motivate more specific, better thought-out legislation from Congress.
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Your questions, answered.
Q: Do you know why people answer your surveys with an unsure/no opinion? Why do they even bother?
— Robert from Los Gatos, CA
Tangle: I’m always happy to talk about our survey methodology.
Every day in our “The extras” section, we include the results from the previous day’s reader survey. Last Tuesday, for our edition on the Ten Commandments, our survey netted just over 1,800 replies — our second-most answered survey ever. As many of you know, each survey we give includes an option for “Unsure/No opinion.”
But even 1,800 respondents only represents one percent of our subscribers, so most of you don’t know about that part of what we do at Tangle. We aren’t exactly polling experts — and our reader surveys are far from scientific — but what we’ve learned is that it’s a best practice to include a response option for readers who aren’t firm in their opinion, for one reason or another. The theory is that including an “Unsure/No opinion” option informs us of when a topic is a little confusing or complicated so readers can genuinely report that they just haven’t formed a strong opinion.
Further, we believe that a lot of our survey responses come from the same (relatively) small group of people, and if those people know that they can fill out our surveys even when they aren’t firm in their stances, then we’re able to reach more of that group. And the more respondents we get, the more confidently we can say that we’re getting an accurate sample of our readership (or at least the most engaged portion).
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Under the radar.
Israel is planning for the end of the war in Gaza by preparing to test a series of “bubbles” — humanitarian enclaves in select northern Gaza neighborhoods — designed to be insulated from Hamas. Under the plan, the Israeli military would distribute aid to vetted local Palestinians, who would disperse the aid and gradually expand their responsibilities to take over civilian governance in the area. Israel hopes to eventually expand these bubbles throughout Gaza to gradually replace Hamas rule in the strip. The initiative, however, faces growing skepticism within Israel and in the surrounding Arab states. The Financial Times has the story.
Numbers.
- 201. The number of judges appointed to the federal bench by President Joe Biden to date.
- 23%. The percentage of active judges in the federal court system appointed by Biden.
- 234. The number of judges appointed to the federal bench by former President Donald Trump during his term.
- 28%. The percentage of active judges in the federal court system appointed by Trump.
- $710. The amount per day that herring fishermen were required to pay to bring mandated observers on their ships in compliance with a 2020 agency rule that prompted the challenge in Loper Bright Enterprises v. Raimondo.
- 4. The number of federal agencies (out of 16 surveyed) that received ratings of “excellent” or “good” by more than half of U.S. adults in a 2023 Gallup survey: the U.S. Postal Service (62%), the Secret Service (55%), the Department of Defense (53%), and NASA (52%).
- 1. The number of federal agencies that over 50% of Republicans rate as doing an “excellent” job: the U.S. Postal Service.
- 12. The number of federal agencies that over 50% of Democrats rate as doing an “excellent” job.
The extras.
- One year ago today we had just covered Republican attempts to impeach Joe Biden.
- The most clicked link in Thursday’s newsletter was the clip of Briahna Joy Gray rolling her eyes at the sister of an Israeli hostage.
- A little to do with politics: A giant sinkhole dramatically swallowed part of an Illinois soccer field.
- Thursday’s survey: 636 readers answered our survey about Jamaal Bowman losing his primary with 83% saying they would have voted for George Latimer. “Above all else, Jamaal Bowman's defeat shows that progressives need to steer clear of the abstraction of race and revert back to what made progressive policies popular in the first place: uplifting working-class constituents,” one respondent said.
And on Friday, 87% of our 743 poll respondents said that Donald Trump won Thursday’s presidential debate.
Have a nice day.
Residents of Santa Ana, California, have difficulty consistently finding nutritious food, but a new organization is changing that. The Seva Collective is a food pantry that began to address food needs at the beginning of the pandemic and has now become a community staple that many residents rely on for its ease of use. Individuals drive up to the food bank, where volunteers load their cars with fresh produce. Seva Collective emphasizes giving out “fresh produce and unprocessed foods… to encourage healthy habits and slow systemic health problems,” according to CBS News. The Uplift has the story.
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