Supreme Court may reconsider Chevron decision

July 20, 2019

A June ruling suggests that the Supreme Court may be considering whether to make changes to a 1984 ruling concerning federal authority to interpret the laws of its own agencies, the Daily Caller reported.

The original decision in Chevron v. National Resources Defense Council, spearheaded by the late Justice John Paul Stevens, decided that federal agency interpretations of ambiguous laws it administers should take precedence over the interpretations of the courts. While it didn’t seem like a significant ruling at the time, many conservatives now think it has led to an imbalance of power toward federal agencies and away from the judicial branch.

Those who support the Chevron doctrine say that it allows agency experts to interpret ambiguous laws rather than judges, who might not be as familiar with the complex subject matter.

Critics of the decision point out that it allows unelected bureaucrats to effectively make laws, preventing those laws from being ruled on by the courts. Justices Neil Gorsuch and Clarence Thomas have both been critical of the Chevron decision in recent years.

Roberts Signaling Change?

The June ruling on Kisor v. Wilkie dealt more with another similar precedent, 1997’s Auer v. Robbins. The Auer deference doctrine said that agencies had precedence over the courts in interpreting their own internal rules, whereas the Chevron ruling applied to laws made by Congress.

Chief Justice Roberts agreed with the liberal majority to preserve Auer, but with strict limitations. Agencies’ interpretations could take precedence over court rulings — but only if the rules were truly ambiguous and had been ruled by the courts to be so.

If the rule is determined to be genuinely ambiguous, the subsequent interpretation by the agency must be reasonable, the Supreme Court ruled. In other words, more checks on federal power were put in place to balance out what has become an uneven playing field.

In regards to the Chevron decision, Roberts mentioned in his opinion that he didn’t think Chevron applied to the Kisor v. Wilkie decision because the rule in question was not made by Congress. However, he also said that Chevron could potentially be reviewed and changed in the future.

Conservative Justices Want Review

Although Roberts hinted at a review of Chevron, other conservative justices went further and used their opinion in the Kisor v. Wilkie case to say outright that Chevron should be reviewed.

Gorsuch, who has long criticized the Auer doctrine, wrote in a footnote that he had “serious questions” about the Chevron doctrine’s constitutionality and its compatibility with the Administrative Procedure Act. Thomas and Justice Brett Kavanaugh both joined that part of his dissent.

While on the surface it seems to make sense that agencies should use their expertise to interpret rules that pertain to them, in practice, it removes oversight that can be helpful when powerful federal agencies like the Environmental Protection Agency or the Bureau of Land Management get myopic — or political. Having checks and balances is part of what has made our system of government fairer than many others around the world.

When so much of government has become politicized and partisan in its nature, it may be a very bad idea to let the unelected bureaucrats running federal agencies be the final word on their own rules.

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Jen Krausz

Jen Krausz is a Conservative Institute staff writer. A lifelong member of the Republican Party, she has an English degree from a liberal arts college and has contributed to numerous publications including Newsmax.