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The Ideological Warfare Behind the Attack on Chevron Deference: Part 1

Responsive Government Courts Defending Safeguards

This post is the first in a three-part series. Read Part 2 here. Read Part 3 here.

In January, the U.S. Supreme Court heard oral arguments in a pair of related casesLoper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce — which could be among the most consequential decisions for U.S. democracy that the Court has ever issued.

That’s because the cases urge the Court to overturn a longstanding judicial doctrine called Chevron deference. Over the last 40 years, that doctrine has provided a practical framework for mediating the growing separation-of-powers fights among the three branches for control over administrative agencies, with the preservation of the administrative state’s essential democratic foundation as its guiding star.

The doctrine arose in a 1984 case called Chevron v. NRDC, which involved a challenge brought by the nonprofit Natural Resources Defense Council over the Environmental Protection Agency’s (EPA) novel interpretation of a Clean Air Act provision. The Court recognized that the values of democratic accountability and honoring expertise dictate that agencies themselves are better positioned to resolve questions about the meaning of authorizing statutes when those statutes are ambiguous, and therefore unanimously upheld the EPA’s deregulatory air policy.

From this case arose the Chevron “two-step” framework — quite possibly the most relied-upon tenet of American administrative law — which is made use of any time a government agency and affected members of the public do not see eye-to-eye on how to interpret a statute. At Step 1, the reviewing judge determines whether the debate over the meaning of the language can be definitively resolved through traditional tools of statutory construction. If not, the judge then moves to Step 2, which involves assessing whether the agency’s action rests on a reasonable interpretation of the disputed language.

Note there are two important things going on under the surface of this framework — both of which flow from Chevron’s motivating concerns with democratic accountability and expertise. First, Chevron deference rests on the assumption that Congress can and has implicitly delegated statutory interpretation responsibilities to agencies, as opposed to the judiciary. Second, reviewing judges must accept an agency’s interpretation even if they do not agree that it is the “best” interpretation. It is this conscious act of yielding to agencies that puts the “deference” in “Chevron deference.”

For much of its history, Chevron deference has been able to count conservatives among its most enthusiastic supporters. In the 1980s and ‘90s, members of the then-burgeoning conservative legal movement regarded the doctrine as a powerful bulwark against what they perceived as the greatest threat to their agenda: liberal activist judges.

But in recent years, bringing about the deconstruction of Chevron deference has become a cause célèbre for conservative lawmakers and advocates. They have come to recognize that the doctrine had tied an anchor around what has now become their greatest political asset: a federal judiciary that will remain well-stocked with conservative ideologues for decades to come. Consequently, Loper Bright and Relentless can be properly understood as the culmination of a years-long campaign to clearcut Chevron from the legal landscape so that a new regime of creeping reactionary juristocracy could flourish in its place.

For their part, progressive advocates have rightly recognized the political implications of these cases — namely, as a cynical power grab by conservatives. Largely unable to secure majority rule in the political branches through the standard democratic process, conservatives have become increasingly dependent on their “policymakers on the bench” for advancing their agenda (or defeating that of their political opponents). The death of Chevron is key to unlocking the full potential of this strategy.

But, for conservatives, the fight against Chevron is also about waging a broader war over ideology. As the oral arguments confirmed, embedded within this fight are at least three ideas that are central to the contemporary conservative movement’s project to reprogram American political thought for decades to come. In the second post of this three-part series this afternoon, I will explore each of these three ideas in greater detail.

Responsive Government Courts Defending Safeguards

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