Key takeaways
The U.S. Supreme Court could upend 40 years of administrative law jurisprudence by overturning Chevron v. NRDC, a landmark case that gives experts at administrative agencies the tools necessary to run the government effectively. Overruling Chevron would undoubtedly result in a flood of litigation attempting to eliminate the government’s ability to protect Americans from bad actors of every sort and looming threats as society grows more complex.
Overruling Chevron could affect every federal agency in the government, especially if the court chooses to replace agency expertise with judicial policy preferences. Discarding Chevron will only further politicize administrative law.
The ruling could flood the federal courts with corporate interests challenging regulations in every sector, risking Americans’ access to fair pay and acceptable working conditions, safe food and medications, affordable health care, clean water and air, stable financial markets, student loan forgiveness, civil rights protections, and much more.
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Introduction and summary
On January 17, 2024, the U.S. Supreme Court will hear oral arguments in Relentless Inc. v. U.S. Department of Commerce and Loper Bright Enterprises v. Raimondo, a pair of cases that could upend 40 years of administrative jurisprudence and prevent the federal government from effectively serving the American people.1 Petitioners in these cases are challenging a narrow fisheries management rule that requires commercial fishing vessels to pay for compliance monitors. To do so, however, they are asking the court to completely eliminate judicial deference to agency experts in implementing regulations.2 Should this radical right-wing Supreme Court take the bait, the judicial branch could continue shifting power away from executive branch experts and elected representatives—leaving Americans’ access to fair pay and working conditions, safe food and medications, affordable health care, clean water, breathable air, stable financial markets, reliable electricity, and much more hanging in the balance.
Rather than consider the narrow question on fisheries compliance costs, the high court agreed to hear arguments on a larger and more fraught issue: whether it should overrule the 1983 case Chevron U.S.A. Inc. v. National Resources Defense Council (NRDC).3 Chevron is a foundational case in administrative law, in which the Supreme Court held that when a federal statute is ambiguous or silent, courts should defer to an agency’s interpretation of that law so long as it is reasonable.4 For 40 years, Congress and federal agencies have relied on the Chevron doctrine to craft a stable statutory and regulatory landscape, in which agency experts work to protect Americans and businesses know the rules of the road. They do so with the knowledge that the deference afforded to agencies means courts will not arbitrarily strike down regulations as a means of elevating a judge’s policy preferences. This may well change should the high court choose to overrule Chevron, invalidating Congress’ authority to delegate policy decisions to agency experts and making significant changes to how federal courts review agency decisions. With such a ruling, hundreds of federal statutes and thousands of regulations could be called into question—causing chaos in the courts, the marketplace, and the country as a whole.
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Background: The Chevron doctrine
Congress created administrative agencies to work for the American people.5 When the legislative branch enacted statutes establishing executive agencies, it endowed them with the power to implement and enforce federal laws.6 Under the 1946 Administrative Procedure Act (APA), Congress also directed the federal judiciary to review agency actions to ensure compliance with agencies’ governing mandates and applicable federal law,7 and it tasked both courts and administrative agencies with interpreting complex statutory frameworks when statutory language is unclear or ambiguous.
Courts and administrative agencies, however, do not always agree on the proper interpretation of a statute—especially when Congress has left terms ambiguous or is simply silent on an important aspect of implementation. That’s where the Chevron doctrine comes in.
Chevron v. NRDC
In Chevron v. NRDC, the Supreme Court determined how courts should review an administrative agency’s interpretation of the statute it administers when either the statute itself is silent on a specific issue or the meaning of the text is ambiguous.8 In 1981, the U.S. Environmental Protection Agency (EPA) interpreted a portion of the Clean Air Act defining certain sources of air pollutants. When the EPA’s interpretation was challenged, the Supreme Court was tasked with determining whether ambiguity or silence in a statute means that the reviewing court can impose its own interpretation or if the expert agency’s interpretation should suffice.
The unanimous decision by the court in Chevron v. NRDC upheld the EPA’s regulation, introducing a two-step analysis for future courts to follow:
- First, courts look to whether Congress has “directly spoken to the precise question at issue.”9
- If congressional intent is not explicitly clear, the court turns to whether the agency’s interpretation is “a permissible construction of the statute,” deferring to agency experts as long as their interpretation is reasonable.10
The court held that Congress delegated authority to agencies to serve as the primary interpreters of the laws that they both exist under and administer.11 It reasoned that administrative agencies have superior subject matter expertise and are therefore better equipped than courts to interpret these at times technical and complex regulatory schemes.12 Further, the court noted that because agencies are overseen by the president and hence more democratically accountable to Americans through elections, they are better suited to interpret the “competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency.”13
Thus, the Chevron doctrine was born. Over the years, the court has limited the types of statutory interpretation that qualify for review under Chevron. For instance, Congress must have delegated the authority for the agency in question to “speak with the force of law” for Chevron analysis to apply—a step sometimes called Chevron “step zero.”14 This analysis reveals how formal the agency’s procedures are for determining statutory interpretation doctrine.15
More recently, however, the court established a new, ill-defined, and arguably political “major questions doctrine” providing that certain issues of vast “economic and political significance” are outside an agency’s statutory scope of authority, even in instances where Congress appears to have spoken on the matter.16 The court appears to be taking steps to supplant Chevron deference with the major questions doctrine, meaning the court asks if agency action is “major” enough before conducting the Chevron analysis—another wrinkle in the Chevron step-zero analysis.17 However, the doctrine has not been uniformly applied, and occasionally the court will apply major questions without mentioning Chevron, without providing an explanation.18
Conservative justices poised to overturn Chevron
For 40 years, courts have applied Chevron as binding precedent, citing the landmark case in more than 19,000 federal court decisions.19 However, with new ideological dynamics on the Supreme Court, all those cases could be called into question. Conservative Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh have indicated an openness to reconsidering Chevron—in line with an aggressive push by corporate and moneyed interests to weaken administrative agencies.20 The modern right-wing movement is explicitly attempting to dismantle federal agencies it falsely paints as filled with bureaucrats with sinister intentions; in fact, however, conservatives are attempting to dismantle enforcement of laws that hold businesses accountable.21 This would make it harder for ordinary people to work safely, live healthy lives, and avoid financial exploitation.
Ironically, one of the earliest and staunchest supporters of the Chevron doctrine was Justice Antonin Scalia, arguably one of the most conservative justices to ever sit on the bench.22 When Chevron was handed down in 1984, Justice Scalia was a judge on the D.C. Circuit Court of Appeals, where the case loomed large: That appellate court’s docket had the highest percentage of cases involving administrative action review in the nation.23 Justice Scalia led the charge in building the prominence of Chevron, arguing in his concurring opinion in Immigration and Naturalization Service v. Cardoza-Fonseca that the majority opinion in Chevron had not gone far enough.24 Scalia went as far as warning the Supreme Court that undermining Chevron would be a grave misstep, admonishing the court’s “eagerness to refashion important principles of administrative law.”25 After Justice Scalia’s death, conservatives reversed course, turning against the doctrine in a crusade led in part by his replacement, Justice Gorsuch.26
Initially, Justice Thomas also supported Chevron deference, writing the majority opinion in a 2005 case, National Cable & Telecommunications Association v. Brand X Internet Services, that directed courts to grant even more deference to administrative agencies.27 However, 15 years later, Thomas changed his mind on Chevron deference, going as far to criticize the very opinion he wrote in arguing that the decision was unconstitutional.28 Thomas’ reversal surprised many observers, especially since he is known to be “unmovable” when it comes to his judicial philosophy.29
However, recent reporting from ProPublica suggests that Justice Thomas’ previously undisclosed deep ties to right-wing conservative billionaires, such as Harlan Crow, Charles and David Koch, and judicial influencer Leonard Leo, may have something to do with his change of heart.30 For the past 15 years, the Koch brothers have created a network of nonprofits, whose mission includes dismantling the Chevron doctrine for the benefit of corporations and America’s wealthiest individuals.31 In fact, the attorneys representing the challengers to Chevron in Loper Bright v. Raimondo work for Koch-affiliated organizations and receive significant funding from Leo-directed groups.32 Since the Supreme Court has no enforceable code of ethics, Justice Thomas will not be required to recuse himself from the Loper Bright and Relentless cases, despite many calls for him to do so.33 Conservative justices, most prominently Thomas and Samuel Alito, have faced multiple ethics scandals related to their undisclosed close personal and at times financial ties to right-wing billionaires who have business before the court.34
Read more on the Supreme Court’s weak code of conduct:
Right-wing interests benefit from overturning Chevron
Conservatives have long battled against the expert civil servants within administrative agencies—which they recently have branded the “deep state”—in favor of the corporations and moneyed interests the agencies often are mandated to regulate.35 Special interests in favor of deregulation, many of which have filed amicus briefs in Loper Bright, have long pushed the narrative that the administrative state is unaccountable and bloated with power.36 Overruling Chevron is a piece of a larger strategy in which regulated industries have spent billions of dollars fighting regulatory enforcement, all in the service of corporate profits.37 These conservative moneyed interests, including the Koch network and organizations affiliated with Leonard Leo, also worked for decades to influence individual conservative justices to assist their efforts to deregulate.38
Many court followers speculate that Justice Alito and Chief Justice John Roberts are also open to overturning the doctrine, or at the very least significantly narrowing it, based on their past statements.39 For example, Chief Justice Roberts refused to apply the Chevron framework in the 2022 case West Virginia v. EPA, instead advancing an ill-defined legal theory called the major questions doctrine.40 Justice Alito has publicly described Chevron deference as “a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”41
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Consequences of eliminating or narrowing the Chevron doctrine
With the radical conservative majority of the high court poised to overturn Chevron deference, agencies, industries, and the American people should brace themselves for the far-reaching consequences of the potentially disastrous deregulation that could follow.
Replacing agency deference with judges’ policy preferences
If the Supreme Court overrules Chevron, agencies and lower courts will scramble to grapple with whatever new system the court decides will be the law of the land. Before Chevron, the court applied a lower level of deference to agency rulemaking, which stemmed from a 1944 precedent created in Skidmore v. Swift & Co.42 Under Skidmore, courts closely evaluate the strength of an agency’s reasoning, according the agency’s interpretation “a respect proportional to its ‘power to persuade.’”43
Chevron has allowed consistent application of regulations in district courts across the country and across agencies as varied as the Department of Labor, the Securities and Exchange Commission, and the Environmental Protection Agency. Replacing Chevron with Skidmore deference would provide a framework of judicial review that would allow courts to undermine agency expertise more easily; overturning Chevron could allow a philosophically diverse group of 850 federal judges across the country decide whether agency actions are considered reasonable.44 In other words, in the absence of Chevron, the Supreme Court and district court judges across the country could invalidate agency interpretations at an alarming rate. It is also unclear what would become of existing regulations and interpretations enacted under the standards set by the Chevron doctrine; thousands of regulations at dozens of agencies could be in jeopardy.
Another path the court could take is replacing Chevron deference with the major questions doctrine, a dangerously vague theory that would allow justices to dispense with any agency policy they disagree with so long as the impact of the policy is sufficiently “major.”45 The major questions doctrine rests on the premise that some issues are just too big for Congress to delegate to administrative agencies without an explicit and clear authorization.46 The first time the doctrine was formally invoked in a majority opinion was in the 2022 case West Virginia v. EPA, where the court found that agency claims to regulatory authority should be rejected when: 1) the claim concerns an issue of “vast economic and political significance”; and 2) Congress has not clearly given the agency authority over the issue.47 The exact definition of “vast economic and political significance” is still up for debate, though the court recently used the major questions doctrine as the basis to strike down the Biden administration’s efforts to protect and aid Americans during the COVID-19 pandemic, including the eviction moratorium, the vaccine mandate, and the student loan forgiveness plan.48
While it remains unclear to what degree the major questions doctrine already supplants Chevron deference, if the court overrules Chevron, major questions will likely expand in scope.49 The court will get to decide when an agency’s action, aimed to protect Americans’ health and safety, is simply too impactful to be constitutional. Even more pernicious is the fact that courts are retroactively applying the major questions doctrine to statutes that have been in force for decades and for which Congress could not have predicted this perverse standard of review.50 As such, it is reasonable to view this as a power grab of policymaking away from Congress.
This nebulous standard is ripe for abuse—an avenue for the Supreme Court to dismantle any agency policy with which conservative justices disagree. Conservative activists are continuing to attempt to use the major questions doctrine to undermine administrative agency authority in various issue areas, including immigration, workers’ rights, telecommunications, antitrust enforcement, climate change, insurance coverage for contraceptives, abortion, nuclear waste storage, discrimination on the basis of gender identity and sexual orientation, fiduciary duties, and many more.51 In the lower courts, these activists have begun to see a spike in success with this tactic, especially in the infamously conservative U.S. Court of Appeals for the 5th Circuit.52
Options to preserve agency decision-making in the absence of the Chevron doctrine
Should the court overrule Chevron, Congress could push back by codifying a standard of statutory interpretation similar to Chevron, potentially limiting or even quashing the use of the major questions doctrine. Moving forward, Congress could also be more explicit in stating its intent when delegating power to administrative agencies. For example, in 2023, Rep. Pramila Jayapal (D-WA) reintroduced the Stop Corporate Capture Act, which would amend the Administrative Procedure Act to direct courts to defer to an agency’s reasonable interpretation “regardless of the significance of the related agency action or a possible future agency action.”53
Alternatively, law professor Christopher Walker argues that Congress could enact a statutory scheme similar to the Congressional Review Act for the major questions doctrine, in which every time a federal court strikes down an agency’s interpretations based on the major questions doctrine, Congress explicitly and affirmatively delegates the invalidated authority to the agency.54
Nevertheless, if Chevron is struck down, long-standing statutes that have received the benefit of Chevron deference will be more open to attack from conservative interests seeking to limit their regulatory reach. Members of Congress would be well-served in submitting comments during negotiated rulemaking to establish the congressional intent behind statutory rulemaking. In enacting new statutes, Congress will need to work closely with legislative counsel to identify language that is specific and inclusive yet expansive in order to preempt judicial interference with the scope of statutory authority intended for use by agencies.
Overturning Chevron will affect millions of Americans across all areas of life
Overruling 40 years of precedent would not only cause chaos in the federal courts but also reverberate across federal agencies and directly affect the American people. According to the Administrative Conference of the United States, there are more than 400 administrative departments and offices in the federal government.55 While not all these agencies’ regulations will be on the chopping block, overturning Chevron will have significant impacts on many of the agencies tasked with safeguarding vital protections for Americans. The decision could immediately erode workers’ rights, civil rights, access to health care, and environmental protections.56
Workers’ rights
Under the National Labor Relations Act, the National Labor Relations Board (NLRB) implements federal protections for the rights of workers to unionize and engage in collective bargaining—allowing private sector employees to seek better working conditions and representation without fear of retaliation.57 Courts have upheld the NLRB’s actions under Chevron in thousands of cases. Overturning Chevron would upend these prior cases, with federal courts scrambling to reinterpret hundreds if not thousands of decisions.58Regardless of what the Supreme Court replaces Chevron deference with, future NLRB decisions would likely be subject to heightened scrutiny, as any standard would provide any agency lower levels of deference, making it more difficult for agencies to effectively protect American workers’ rights in the face of corporate power.59 Further, overturning Chevron will provide another avenue for corporations to attack the NLRB’s validity, as SpaceX is already attempting to eliminate the agency’s administrative enforcement authority in the wake of another case before the court this term, SEC v. Jarkesy.60
Similarly, protections for American workers enforced by the U.S. Department of Labor (DOL) and the Equal Employment Opportunity Commission will be affected if Chevron is overturned. For example, the Wage and Hour Division of the DOL enforces and interprets the Fair Labor Standards Act (FLSA), which sets the minimum wage, overtime, record-keeping, and youth employment standards for 150 million American workers.61 In interpreting the language of the FLSA, the Wage and Hour Division issues exact standards with which employers must comply, as well as conducts investigations and brings complaints against noncomplying employers.62 This entire process could be in jeopardy if Chevron is overturned.
Civil rights
Agencies across the federal government enforce civil rights and protect vulnerable American communities. One example is the U.S. Department of Housing and Urban Development (HUD), which implements the Fair Housing Act, a federal statute that protects people from discrimination on the basis of race, color, national origin, religion, sex, familial status, and disability when renting or buying a home, getting a mortgage, or seeking housing assistance.63 The statute broadly describes the prohibited discriminatory conduct, but HUD interprets the language into enforceable directives to serve Congress’ stated goals.64 As the Lawyers’ Committee for Human Rights explains, HUD’s highly specific regulations help victims of discrimination know and enforce their rights, while also helping the real estate industry avoid engaging in unlawful conduct.65 For Americans who face housing discrimination, overturning Chevron would create significant barriers to accessing justice.
HUD also enforces protections for survivors of domestic abuse by allowing them to enforce their housing rights. The Violence Against Women Act (VAWA) recognizes that for survivors of domestic violence, access to safe housing is a critical short- and long-term need.66 Congress enlisted HUD to implement federal protections for survivors of domestic violence in federally assisted living facilities in order to reduce incidents of domestic violence and eventual homelessness of survivors in the HUD system.67 However, VAWA does not describe the specific ways a survivor could invoke the enumerated protections under the law, leaving it to HUD to provide concrete standards to protect survivors, their families, and landlords working to protect survivors.68 If the Supreme Court disregards Chevron deference, these standards could be called into question, preventing survivors from enforcing their rights under VAWA.69
Access to health care
Public health insurance programs provide millions of Americans access to quality health care.70 Medicare, which is federally funded and administered, provides health insurance coverage for approximately 65 million people in the country, while Medicaid and CHIP, jointly funded via federal-state partnership and administered by states, provide access for roughly 90 million low-income children and adults and people with disabilities.71 At the federal level, the programs are regulated by the U.S. Department of Health and Human Services through the Centers for Medicare and Medicaid Services (CMS), experts in implementing these complex statutory landscapes.72
Chevron deference has allowed CMS to implement the laws associated with these health care programs through complex policy determinations.73 These programs provide health insurance coverage to nearly 40 percent of the U.S. population and must be nimble to respond to changes in health care needs and treatment practices; prevent fraud and abuse; and continuously incorporate the needs of beneficiaries, care providers, drug companies, and other stakeholders.74 The massive consequences of overturning Chevron in this context cannot be overstated. Millions would be spent on litigation challenging every Medicare and Medicaid rule promulgated under the doctrine, disrupting thousands of decisions and the health care industry writ large.75 The chaos would affect millions of Americans and likely prevent them from being able to access timely, quality health care and affordable health insurance.76
Environmental protections
Chevron also looms large as the federal government aims to implement regulations to fight climate change, protect the environment, and ensure Americans have safe air to breath and water to drink.77 Before the passage of environmental laws, rivers caught fire, lead in gasoline poisoned humans and wildlife, and smog blanketed cities and rural areas alike.78 Without oversight and regulations, industry and corporations emit excessive pollution to save money and take shortcuts that damage health and the environment. Chevron has allowed the executive branch to prioritize climate change and environmental progress.79 The Chevron case itself demonstrates how experts at the EPA implement the discrete details of the Clean Air Act to ensure compliance and uniformity across the country.80
Further, through various statutes, the EPA uses its enforcement and interpretive powers to reduce air pollution, greenhouse gas emissions, acid rain, and waste and chemical contamination; to fight climate change and promote greener energy sources; to ensure water quality across the country; and to protect Americans’ health through reducing lead and mold poisoning and exposure to cancer-causing pesticides.81 The agency enforces upward of 40 statutes and has issued thousands of regulations that protect the environment and Americans’ health.82 These statutes include the Clean Air Act; the Clean Water Act; the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act; the Atomic Energy Act; the Protection of Children from Environmental Health Risks and Safety Risks executive order; the Nuclear Waste Policy Act; and the Toxic Substances Control Act, among others.83 These are deeply complex statutes that require experts to interpret and implement them. For example, the EPA regulates a large swath of American industries in order to safeguard Americans’ health, including the agriculture, automotive, construction, electric, oil and gas, and transportation sectors.84 If the Supreme Court overrules Chevron, Americans will be at the mercy of these corporate behemoths, with a weakened EPA unable to fulfill its statutorily mandated duties effectively.
Conclusion
The Loper Bright and Relentless cases are some of the most dangerous in a larger trend of cases pending before the Supreme Court this term that could effectively render functional governance in the United States null and void at the whim of unelected judges. A case that has already been argued, Securities and Exchange Commission v. Jarkesy, stands to severely limit agency enforcement of statutory authority and limit congressional authority to direct agencies to implement and enforce the law.85 An upcoming case, Corner Post Inc. v. Board of Governors of the Federal Reserve System, could open up the statute of limitations to challenge long-standing regulations at any time, allowing deregulatory interests to challenge virtually any aspect of the Code of Federal Regulations, no matter how long it has been in existence.86 Taken together, these cases could critically impair the federal government’s ability to serve and protect the American people from moneyed interests that put profits above all else. They could rewind administrative law to a pre-1930s framework, when corruption and greed led to dominance of the national economy by robber barons, unspeakable workplace abuses, unchecked pollution—a time known as the “Lochner era” in American jurisprudence—and ultimately the Great Depression.87
Because it would be difficult and unpopular to repeal these cherished protections in Congress, a majority ultraright-wing Supreme Court has stepped in to make these decisions itself. This is why Supreme Court reforms, including creating a binding code of ethics that could limit certain justices’ involvement in cases like this, are necessary. But this would not go far enough. Broader reforms to hold justices accountable to the American people, such as the imposition of 18-year term limits, ending judge and forum shopping, and expanding mandatory jurisdiction, are necessary to rein in an out-of-control court and reestablish the constitutional system of checks and balances.