Since 1984, federal agencies have had discretion to implement policy mandates, on matters ranging from health care to environmental protection, in ways that maximize benefits to communities across the U.S. while preserving their flexibility to adapt to changing circumstances.
This discretionary authority comes from a legal doctrine known as Chevron deference — which now appears to be in jeopardy in two cases awaiting decision from the U.S. Supreme Court. Upending Chevron would be a mistake.
The cases challenge a rule that requires commercial fishing enterprises to pay for government-approved observers who prevent illegal overfishing. Lower courts upheld the regulation, invoking Chevron. In oral arguments at the Supreme Court, a majority of the justices seemed sympathetic to the fisheries’ argument that Chevron allowed federal overreach and threatened the viability of their small, family-owned ventures.
But the decision is about much more than fisheries. Many regulated industries oppose Chevron deference, the principle of deferring to federal agencies to make legal interpretations of congressional laws so long as the interpretation is reasonable, because those regulations often cut into profit margins. Despite being framed as a David-and-Goliath battle between mom and pop fishing businesses against the big bad federal government, the cases are supported by very powerful moneyed interests: the lawyers for the fisheries work for Americans for Prosperity, an organization funded by oil and gas baron Charles Koch.
Eliminating Chevron, which has stood as the bedrock of administrative law for four decades, would further erode the ability of federal agencies to rely on scientific expertise to act in ways that promote and protect public health and the environment, while expanding the power of courts to hinder their important work on our behalf in health, the environment, anti-trust, consumer protection and much more.
The stakes are high. Consider the pending case Garland v. Cargill, in which the Supreme Court may invalidate a Trump administration rule that interprets federal law banning machine guns to also ban “bump stocks.” Bump stocks are devices attached to rifles that harness the kickback to fire additional rounds in rapid succession, mimicking the function of a machine gun. The Las Vegas shooter used bump stocks to strong effect, killing 58 people and injuring hundreds. At oral argument, Supreme Court justices squabbled over the statutory language, rather than defer to the policy and scientific expertise of the Bureau of Alcohol, Tobacco, Firearms and Explosives, which promulgated the rule.
In another case last term, Sackett v. EPA, the Supreme Court narrowed the reach of the Environmental Protection Agency over the “waters of the United States.” EPA defined this statutory term using its expertise, and the Clean Water Act prohibits dumping pollutants from point sources into these waters. But the Supreme Court refused to defer to EPA’s interpretation, instead concluding the Clean Water Act does not cover private wetlands without a continuous surface connection. This could increase the discharge of pollutants into private property, which then can enter public waters through underground channels, threatening drinking water and public waterways alike.
The Supreme Court has been chipping away at the deference given federal agencies for a decade now, mostly notably in West Virginia v EPA (2022) where it instituted the modern “major questions doctrine” requiring that congressional authorization be clear for agencies to implement rules of major significance. This doctrine sets a high bar which many important health and environmental policies will not survive.
The Supreme Court used the major questions doctrine to strike down the EPA’s Clean Power Plan to regulate power plants, the Centers for Disease Control and Prevention’s eviction moratorium during the COVID-19 pandemic, the SARS-CoV-2 vaccine mandate for large employers issued by the Occupational Safety and Health Administration and the U.S. Department of Education’s student loan forgiveness plan.
The major questions doctrine has expanded the power of the Supreme Court at the expense of agencies, as the court becomes the final arbiter of which agency decisions are major and whether the congressional authorization is sufficiently clear. Overturning Chevron would increase the Supreme Court’s power even further, putting federal agencies under the thumb of judges when they try to rein in drug prices, expand access to contraception, and make myriad other decisions.
The anticipated fall of Chevron should renew discussions of limits on the power of the Supreme Court. Not all of these are controversial. A bipartisan commission on the Supreme Court issued a report in 2021 endorsing term limits for the justices, an idea that enjoys bipartisan support from the public. With term limits, justices who needlessly imperil public health and the environment cannot sit on the bench indefinitely.
Daniel G. Aaron is an associate professor at the University of Utah’s S.J Quinney College of Law. Avery E. Emery is a second-year student at the S.J. Quinney College of Law.