Chevron in Ignominy: Loper and the Court’s Quest to Reassert Judicial Power

One can smell the triumph pouring from Chief Justice Roberts’ pen as they read the slow, booming, antediluvian words: “Chevron is overturned.” While the Roberts Court is no stranger to overturning historic cases, Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce et al. stands out—particularly when juxtaposed with Dobbs v. Jackson—for the incongruity between its muted public reception and the sheer impact it will have on the daily operations of the executive branch and nearly every American enterprise, large or small. For years, federal agencies have pushed for positive change in critical spheres, working to protect American welfare by regulating institutions and enterprises backed by Congressional creations. But in reading Loper and analyzing the constitutional thinking behind its 6-3 opinion, we must ask ourselves: when do hulking, executive behemoths like the EPA, FDA, and SEC act as despots in their own technical fiefdoms, unconstitutionally squashing the individual with unseparated powers, unchecked by other branches? When have they become, as James Madison wrote in Federalist No. 47, “the very definition of tyranny,” unbound by the intricate system he characterized as “ambition… counteract[ing] ambition”? As we shall see, in overturning Chevron, a textualist Court sought to reclaim powers it lost nearly four decades ago with a ceremonial gravitas that only attends acts of historical revisionism.

Four decades ago, in Chevron v. Natural Resources Defense Council, the Supreme Court established Chevron deference with little fanfare and even less recognition of its future import. Since then, the humble case has been cited by federal courts over 18,000 times, becoming a keystone in federal administrative law. A two-pronged test, Chevron doctrine stipulated that barring any specific speech by Congress—whereas its view would triumph—regarding the regulatory issue at hand and faced by an ambiguous statute, the Judicial branch should defer to any agency’s regulation that the court finds “reasonable,” even if it was not the “best” reading that the court thought possible. Siding with Chevron U.S.A., the Court allowed the Environmental Protection Agency to regulate with its own will in areas where Congress had not spoken clearly or was entirely silent. Only six justices ruled unanimously in what Roberts derisively calls a “bare quorum” in favor of Chevron. Soon, businesses and interest groups found themselves pinched between regulations and unable to challenge them in court. Despite the fact that the Justices ruled for Chevron, a private corporation, the crux of Chevron’s impact lay in the Court’s decision to grant federal regulators an almost unimaginable boon. For four decades, they used Chevron deference to stifle legal challenges to the constitutionality of rules not spoken for by Congress—almost regulation in toto—and functionally ignored the judicial recommendations. Armed with narrow legislative mandates but allowed by Chevron to “permiss[ably]” regulate at will in areas not explicitly mentioned, agencies could run amok, emboldened by newfound legislative and executive powers of their own and insulated from any judicial checks. 

While the Supreme Court’s history has been pockmarked since its inception by power grabs, pushbacks, and dances on the edge of catastrophe where the Executive, Legislative, and Judicial branches clashed and compromised over their mutual rights to decide the law, one is hard-pressed to find an instance of the Court willingly ceding its powers—so precious few—to another branch. When examining past interbranch conflicts, one is met with decades of harsh debate and compromise, often characterized by the Court affording unrealistic powers to itself that are either ignored by the executive or so strongly refuted by the legislative that they quickly become immaterial. Faced with the Court’s decision in Worcester v. Georgia in 1832, where the Justices ruled that the state of Georgia had no constitutional authority to impose its laws upon Cherokee land, Andrew Jackson is famed to have bitingly stated: “John Marshall has made his decision; now let him enforce it.” Following Dred Scott v. Sanford’s infamous decision that African-Americans—be they enslaved or free—were not granted the privileges of American citizenship and the constitutional protections accorded to them thereof, as the 13th, 14th, and 15th Amendments were ratified, it became clear that the legislature, primus inter pares amongst the branches, had firmly rejected the Court’s ruling. Yet, Chevron stands alone, in great contrast to these instances of the Court’s history of judicial activism, overreach, and staunch defense of Article III’s designated powers, as it strengthens the executive while eroding the powers of the judicial branch. Thus, it is easy to see how a group of textualist judges, eager to restore our tripartite framework's natural interbranch frictions, might have a bone to pick with Chevron.

As the Roberts Court heard the worst elements of federal regulation that Chevron has allowed to go unchallenged in Loper Bright Enterprises v. Raimondo, the Court—Kagan, Sotomayor, and Jackson excepted—took little time to pounce. Loper Bright Enterprises, alongside other fishing companies, challenged a rule promulgated by the National Marine Fisheries Service (NMFS) requiring fishing companies to fund federal observers onboard their vessels to monitor compliance with fisheries regulations. Paul D. Clement, arguing for the petitioners, put Chevron on the chopping block. Its victims, he noted, were not solely the tech giants or oil behemoths that the American people have come to associate with privacy violations, anti-trust suits, or environmental degradation, but the little guys—fishermen unduly burdened as regulation thrust itself into their world with a personal and physical presence, and at personal expense. 

With its final 6-3 ruling, the Court’s majority wisely affirmed that, despite all of the inconveniences that may arise from constrained federal regulatory procedures, the expediencies of efficient government cannot triumph over some of the most sacred elements of the Framers’ system: the separation of powers and the Judiciary’s inherent Article III powers. Agencies and apparatchiks, no matter the inconveniences of judicial intervention, must not be free from what Justice Louis Brandeis, in his dissenting opinion in Myers v. United States, called the “inevitable friction incident to the distribution of the government powers among three departments…[which] save the people from autocracy.” Roberts’ majority opinion, written in favor of Loper Bright Enterprises, betrays the reality of an acrid interbranch conflict with its forceful thrusts and counter-ripostes. His majority of six seeks nothing less than a redress of grievances as they reclaim the Judiciary’s “responsibility and power to adjudicate ‘Cases’ and ‘Controversies’” outlined in Article III. 

Scalia’s notions of textualism and originalism continually reverberate throughout Roberts’ opinion as he reaffirms what Article III so clearly states: that “the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.”  Roberts writes, “As Chief Justice Marshall declared in the foundational decision of Marbury v. Madison, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’” For his reasoning, Justice Roberts leans upon the Administrative Procedure Act (APA) of 1946, which states that “the reviewing court shall… hold unlawful and set aside agency action, findings, and conclusions found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Echoing Judge Walker’s of the D.C. Circuit and his dissent in favor of Loper Bright Enterprises et al., the Chief Justice argues that Chevron’s decision to grant agencies deference where Congress is not merely ambiguous but silent cannot be taken as permission but rather as explicit prohibition. Roberts, preemptively responding to accusations that a post-Chevron world may be one of regulative impotence, reminds us that, “from the outset,” the Court gave “‘the most respectful consideration’ to Executive Branch interpretations simply because ‘the officers concerned [were]...masters of the subject.’” Respect, however, cannot be equated with the utter docility that Chevron demanded. Judges, rather than presiding,  “mechanically afford[ed] binding deference” to agency regulations, bound to the cubicle tyranny of bureaucrats even when judicial precedent or regulatory inconsistencies muddied the statutory waters. 

Ambiguity, after all, cannot reflect latent Congressional intent but precisely its opposite–nothing at all. In his coda, the Chief Justice makes his boldest claim as he rectifies a byzantine judicial error: that judges are not merely the proper inheritors of the APA’s power to resolve statutory ambiguities but able, in all cases, to better interpret the validity of a regulatory scheme than an agency—particularly when legal, not technical expertise, is needed to pierce the heart of blurry Congressional intent. Thus, Chevron and Loper, twinned acts in a saga of judicial power once ceded and now reclaimed, leave one with the lasting reminder that the Court’s duty is not to offer the Executive Branch expedient interpretations necessary for simple governance but rather to act as an institutional conscience of sorts. The Court exists not to enable the Executive and Legislative Branches but to prune their metastasizing outgrowths, holding them to the letter of the law and thus requiring a higher standard of precision, prudence, and justice.

Will Vogel is a junior at Brown University, concentrating in Political Science and International and Public Affairs. He is a writer for the Brown Undergraduate Law Review and can be contacted at william_vogel@brown.edu.

Ashley Park is a freshman at Brown University, concentrating in English and Political Science. She is an editor for the Brown Undergraduate Law Review and can be contacted at ashley_h_park@brown.edu.