Life After Chevron--An Example

Last week the SCOTUS tossed Chevron Deference on the scrapheap of legal and constitutional history. That courageous decision—throwing down the gauntlet to the entire Prog Admin State—certainly ranks as one in the handful of most important SCOTUS decisions in American history. It could transform relations between American citizens and the Ruling Class, which has relied on the Admin State to enforce its Will to Power. For non-lawyers, Margot Cleveland offers a very lucid explanation of what it all means:

SCOTUS Opinions Indicate The Death Of The Administrative State Is Just Beginning

A better title for the article might have been something like, The Bell Tolls For The Admin State. I’ve excerpted some of what I think gets to the heart of the matter:

The Chevron doctrine “require[d] courts to defer to an agency’s interpretation of an ambiguous statute so long as the agency’s interpretation [was] ‘reasonable.’” Deference under Chevron was demanded even in cases where the agency’s view of the statute was not the best, so long as a court found it “reasonable.”

By declaring statutory language ambiguous, federal agencies have, for years, succeeded in expanding their authority — and making laws in Congress’s stead.

The Supreme Court reversed and, in doing so, overturned Chevron, holding that [the Chevron] doctrine violates the Administrative Procedure Act or “APA.” The APA requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be … not in accordance with law.”

The SEC is but one of scores of federal agencies that use administrative proceedings to “try” citizens for alleged violations of their rules and regulations — serving simultaneously as prosecutor, judge, and jury.

Cleveland’s thesis is that a reading of the decisions in the two Admin State cases strongly suggests that, important as these decisions were, they are “merely the foreshocks for the real seismic shift that will resettle power away from administrative agencies” and restore the apportionment of power to something like the order that was mandated in the Constitution.

To support that thesis Cleveland notes that, while Roberts overruled Chevron because it conflicted with the language of the APA, he actually begins his analysis by referring to the Constitution—not the statute. Article III of the Constitution gives the Federal Judiciary “the responsibility and power to adjudicate ‘Cases’ and ‘Controversies’”—but Chevron allowed Administrative Agencies to usurp that Constitutional assignment of responsibility and power.

Thus, Roberts concludes that “… interpreting the law, as a last resort, is “a ‘solemn duty’ of the Judiciary.” In other words, the Court is proclaiming and reclaiming its constitutional responsibility and power. This goes far beyond statutory interpretation. Cleveland stresses this central aspect of Robert's opinion (while also pointing to the Thomas and Gorsuch concurrences). That restoration of constitutional mandates includes the Court demanding that the Legislative Branch also live up to its responsibilities—and that will include further restricting the authority of administrative agencies:

These details foretell of future Supreme Court decisions further contracting the administrative state — not based on the APA but premised on the structural dictates of the Constitution, which places lawmaking authority solely in the hands of the legislative branch. 

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The focus on Article III again suggests the justices are entering a new age of jurisprudence — one which reconsiders whether the country’s current administrative state can be reconciled with foundational principles of separation of powers. And if Jarkesy and Loper Bright/Relentless provide any clue, it is that the Supreme Court will conclude the so-called fourth branch of government has but narrow authority — given that our framers separated power in the Constitution among only three branches of government.

So, with that under our belts, here’s a simple example of what this could mean for life in America. Understand—this is one of any number of possible examples. Administrative rules and regulations permeate American life. While that will continue, those agencies will be on a short leash:

Biden's De Facto EV Mandate At Risk After Supreme Court "Chevron" Ruling

The Biden Administration’s new strict tailpipe emission standards have just become particularly vulnerable after the Supreme Court overturned last week a 40-year-old landmark ruling, known as the ‘Chevron deference’, which granted federal agencies the authority to interpret ambiguous laws.

The precedent, set in 1984 in a case involving the oil giant, gave federal agencies more power to interpret ambiguous laws. But last Friday’s Supreme Court ruling will strip federal agencies, including the Environmental Protection Agency (EPA), from the power of interpreting laws, such as the Clean Air Act, and how to apply them.   

The U.S. top court ruling will have wide-reaching implications for the oil and gas industry because it will make it more difficult for federal agencies to regulate the environment and public health, based on their interpretation of ambiguous laws.

The tailpipe emissions limits, which the EPA finalized just a few weeks ago, look especially vulnerable in light of the Supreme Court ruling, environmental law attorneys have told Reuters.

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That’s just for starters. Every agency that issues rules and regulations will be under the gun. Expect a vastly expanded legal cottage industry to develop virtually overnight, with its primary business being to challenge agency rules, regulations, and procedures.