The U.S. Supreme Court Gases Chevron
By Craig B. Garner
Founder
Garner Health Law Corporation
Original Publish Date: July 9, 2024
“We cannot change anything until we accept it. Condemnation does not liberate, it oppresses.” Carl Gustav Jung
An Unwitting Cult of Personality
The spotlight shining on One First Street, NE, in Washington, D.C. only brightens as the U.S. Supreme Court continues to adjudicate morality while expanding the influence of the Constitution’s Article III. Notwithstanding the growing personal attacks on integrity, each of the nine justices generally remains consistent in comparison to their historical Constitutional interpretation, and in most instances the Justices of the Supreme Court are still the steady beacon of light upon whom the nation relies during times of moral crisis.
Under Chief Justice John Roberts the Supreme Court also remains consistent in its approach to the doctrine known as stare decisis, which the majority opinion notes in Loper Bright Enterprises v. Raimondo “is not an ‘inexorable command.’” As a result, on June 28, 2024, the Loper Bright Enterprises decision overruled the 40-year precedent affording administrative agencies considerable deference when interpreting statutes administered by such agencies, established by the decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Drawing heavily upon historical cases and commentary, including publications from the Framers of the Constitution, in Loper Bright Enterprises the Supreme Court definitively held that interpreting the meaning of statutes, when necessary, “was exclusively a judicial function.”
The Importance of the Judiciary Branch and the APA
On the surface the decision in Loper Bright Enterprises may not be as exciting as other matters recently considered by the nation’s highest court, including decisions about sex, drugs and race. But in an era of social media discussions sometimes controlled by Project Blue Beam, the Anunnaki, Antarctica’s Ice Wall and the oceans it protects from falling from the edge of a flat Earth, and the Simulation in which we now exist following the discovery of Higgs boson by the CERN Large Hadron Collider on July 4, 2012, there is comfort in knowing this Supreme Court insists that the judiciary retains the final say in matters of statutory interpretation, and the bloated role played by the executive branch over the past 40 years was fundamentally misguided.
In overruling Chevron, the Supreme Court relied upon the 1946 Administrative Procedure Act (APA), enacted by Congress “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Described by another Supreme Court decision as culminating the “comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers,” the APA reinforced the intent of the Constitution’s Framers. “Cognizant of the limits of human language and foresight, they anticipated that ‘[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation,’ would be ‘more or less obscure and equivocal until their meaning’ was settled ‘by a series of particular discussions and adjudications.’” Chief Justice Marhsall summarized this tenet best in 1803: “It is emphatically the province and duty of the judicial department to say what the law is.”
The APA codified the notion that courts decide questions of law by applying their own, independent judgment. The decision in Chevron some 38 years later was a product of an expanding federal government and the challenges faced by the court system to oversee effectively the role espoused by Chief Justice Marshall. By way of background, in 1962 the budget for the executive branch passed $113 billion. By 1984 that number exceeded $900 billion, and in 2023 the budget for this same branch eclipsed $6.4 trillion. With such growth followed an avalanche of regulatory promulgation, some of which is so esoteric that at least one court made a comparison to the writings of James Joyce.
Supporters of Chevron and the need for such deference to the administrative agencies maintain that in many instances these agencies are the topical experts and possibly assisted or even wrote the legislation in question. If true, few if any courts could match the historical knowledge of the administrative agency. Chief Justice Roberts, however, aptly notes that “Chevron defies the command of the APA that ‘the reviewing court’ – not the agency whose action it reviews – is to ‘decide all relevant questions of law’ and ‘interpret statutory provisions.’” To be sure, judges may not be experts in all fields, and Chief Justice Roberts acknowledged this as well. As the Chief Justice explained, however, those proponents of Chevron fail to acknowledge that when it comes to the mystic art of legal interpretation, this specialty field has been “‘emphatically . . . the province and duty of the judicial department’ for at least 221 years.”
A World Without Chevron
The wisdom and insight of administrative agencies will not be lost in a post- Loper Bright Enterprises world. Before and after the APA, the information provided to Courts by administrative agencies has certain probative value. Not all administrative agencies are created equal, and at the same time, not all administrative agencies face evisceration following a Presidential election. While ultimately the court must decide the value of any insight offered by administrative agencies, any decision by the district court always remains subject to review by a court of appeal. While the same was true during Chevron’s 40-year run, Chevron placed specific limitations on the scope of review on appeal. Whether intentional or not, those appellate tribunals honoring the decision in Chevron bound themselves by the deference afforded administrative agencies. In the future, courts of appeal may freely employ a de novo review for the legal conclusions by any district court interpreting statutes, a fundamental part of the APA that was somehow blurred over time by Chevron.
As a practical matter, courts lacking extensive knowledge in a particular field but armed with some wisdom will listen carefully to the arguments by an administrative agency. Such actions are hardly a return to Chevron, and with the unmistakable directive by the Supreme Court in Loper Bright Enterprises, courts no longer must acquiesce to an agency as a matter of law. Nevertheless, the next few years may resurrect myriad decisions from the past filed by former appellants hoping the rejection of Chevron creates an entirely new landscape upon which a court could make its decision. Chief Justice Roberts foresaw this possibility as well, and he noted in the final pages of the opinion that past decisions remain subject to stare decisis despite the rejection of Chevron. “Mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chevron is, at best, ‘just an argument that the precedent was wrongly decided.’” Whatever may pass from the anticipated floodgates should be short in duration, although the ways in which courts approach the decisions of administrative agencies remains to be seen.
A World Without the Supreme Court
In recent years, the Supreme Court has endured unprecedented scrutiny on a personal and collective level. More often such criticism emanates along political lines, and in some instances it surfaces when the Supreme Court adjudicates morality. For a nation equally divided on many important issues, the Supreme Court remains just as important today as when the Constitution first assigned the Federal Judiciary with the power to adjudicate cases and controversies. The continued success of this judicial institution depends upon its commitment to following its instruction manual irrespective of number of years ago the Framers drafted it. The balance between the three federal branches necessitates the enumerated power originally contemplated for all three.
This is the way in which American democracy operates, including the right for individuals to criticize its actual functionality. Institutional change, however, does not and should not come easy, lest the nation’s government transforms into a colossal game of Jenga. Unfortunately, the 114 page slip opinion for Loper Bright Enterprises may create certain walls masking the importance of the nation’s highest court, similar to the 213 page slip opinion in Dobbs v. Jackson Women’s Health Organization or the 103 page slip opinion in United States v. Rahimi. This includes concurring and dissenting opinions, many of which contain valuable analysis into the past, present and future of the nation’s laws. For those possibly disheartened from challenges in truly understanding the words of a preeminent scholar/lawyer/justice, consider the portal through which you may have accessed this opinion and your understanding of how it works. As with most things, faith finds its way into the mix.
Craig Garner is the founder of Garner Health Law Corporation, as well as a healthcare consultant specializing in issues pertaining to modern American healthcare. Craig is also an adjunct professor of law at Pepperdine University School of Law. He can be reached at craig@garnerhealth.com.