Charged Conversations - The Chevron Decision

Episode Transcript

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You're listening to charged conversations with yourhost here, Brigham mccount. This week,
we're going to talk about the Chevrondecision. No, it doesn't have
anything to do with gasoline, butit might just be the most important Supreme
Court case that most of us havenever heard of, and how a companion

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case called Loper could upend nearly fortyyears of Chevron deference. Okay, so
what is Chevron difference. Well,before we take a look at that,
we need to take a look atand understand how federal agencies work. The
framers of the Constitution realize that theOffice of the President, which was very

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small back then, and the Congresslacked expert skills to be able to administer
certain programs. So the federal agencywas created. More specifically, Congress,
in passing what's called an enabling statue, creates a federal agency and gives it
a mission that tells it what itsjurisdiction is and what it can and cannot

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do. Most federal agencies have theability to write regulations. They can't write
regulations, at least not substantive ones, unless the law, the enabling statute,
gives them that right, but mostof them have that right. In
that case, they're carrying out quasilegislative functions. Literally, the Congress is
delegated certain aspects of a legislative bodyto a federal agency. When they enforce

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the laws or regulations that they write, they're seen as an executive branch agency,
and most agencies, at least federalones are considered executive branch agencies subject
to the will of the president,which is why the president gets to a
point agency heads and senior officials overthe career civil servants that run them.

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A few agencies are, however,independent, and these independent agencies are generally
ones that act with a board ora commission. If you think of the
National Transportation Safety Board, the bodythat investigates transportation safety accidents. Yes,
they're appointed by the president, butthey have to have a specific number of

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Democrats and Republicans, and without gettinginto the nitty gritty, whoever's party controls,
the presidency gets one more in thechairmanship. Similarly, the Federal Reserve
is also another one of these creatures, as are Like I said earlier,
anything that typically says commissioner, board, it's not a single agency head.
Many of these are in fact independent, independent meaning they don't have to check

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in with the president before and duringand after they do everything. They are
supposed to be somewhat independent, justlike federal judges, but they're not appointed
for life and they have specific terms. All right, So why is Chevron
important? Well, federal agencies havewe all know, gotten to be more

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numerous and larger with each pressing year. More and more regulations are written in
the Code of Federal Regulations. Andmany of these agencies, including the Department
of Education, Department of Energy,and the Environmental Protection Agency, have only

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been around for about fifty years.The bureaucracy of government and the administrative state
has certainly been growing year after year, and one thousands to tens of thousands
of pages of regulations that are writtenare slowly changing how we see and do
things. So let's go back fortyyears ago. Forty years ago, a
case by the Natural Resources Defense Counselbrought against Chevron that courts should defer to

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an agency's reasonable interpretation of an ambiguousstatue. And that's known as the Chevron
defense, and it seemed reasonable whenit came out forty years ago. Let
me say this again, and maybein a different way, when an agency
interprets a statue that it administers astatue passed by the Congress, the court

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will defer to the agency's interpretation whenthe statute itself is ambiguous and the agency
interpretation is permissible construction of the statue. This famous Chevron defense has become increasingly
controversial, however, and in termsof the case, it appears that it's

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ripe for being overturned. Federal agenciesit started to interpret more and more things
as quote ambiguous unquote. Some ofthat is reasonable because, frankly, the
leg slative branch puts out thousands ofpages of laws that sometimes are written in
the middle of the night or gothrough what we all know the project term

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paper. When things are written ina group, sometimes they're difficult to understand.
But the crux of it is thatis and are federal agencies taking license
with this ability. So the pleato overturn the Chevron doctrine came into the
court with two cases challenging the ruleissued by the National Marine Fishery Service.

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They require the herring industry to bearthe costs of observers on fishing boats that
can cost up to seven hundred dollarsa day applying Chevron, Both the US
Court of Appeals for the District ofColumbium and the US Court of Appeals for
the First Circuit upheld the rule,finding it to be a reasonable interpretation of
the law. The fishing companies cameto the Supreme Court asking the Justice is

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to weigh in on the rule itbut also to overrule Chevron. It told
the justices that the Chevron doctrine underminesreally the duty to say what the law
is and violates federal law governing administrativeagencies, and similarly requires courts to undertake
a fresh review of these legal questionsunder the Chevron doctrine. They argued,

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even if all nine Supreme Court justicesagree that the fishing vessel's interpretation of federal
law is better, they would stillbe required to defer to the agency's interpretation.
As a result, it's not consistentwith the rule of law is the
federal agency is in essence and actingattacks The lawyers emphasize that these clients' cases

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represent real world cost of the Chevrondoctrine on small businesses, and that the
doctrine itself is hopelessly ambiguous and representingthe Biden administration the Solicitor General, Elizabeth
Prilogar, urged the justices to leavethe Chevron doctrine in place, telling them

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that it has deep roots in thisCourt's jurisprudence and under the doctor of Starry
decisives that's Latin for the thing isdecided. The idea is that Court should
generally adhere to their prior cases andthat the Court would need a truly extraordinary
justification to overrule it. The Court'sthree liberal justices during oral arguments have expressed

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support for the doctrine, but thetrouble is the conservative wing of the Court
has not, and even some seenas generally swing or meddal justices, including
the Chief Justice himself, has offeredsome doubt as to whether or not the
Chevron doctrine should survive. If theChevron doctrine is removed, which it appears

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likely, we're going to know thecase of Lope or Bright, probably before
the court's term ends at the endof June. It appears likely that the
Chevron defference will be substantially curtailed,given the concerns of abuse and the fact
that it's become increasingly controversial. Threeterms ago, the Court revisited what we'll

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call the little brother of Chevron.The Our Defense au e r our is
to agency regulations what Chevron is toagency statutes. That the Court will defer
to the agency's interpretation of its ownregulations unless that regulation is quote plainly erroneous

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or inconsistent with the regulations. Theimpacts of reeling in the administrative state could
not be higher. If Chevron goesdown, then it is likely that the
Our Defense would be also removed,or at least its wings clipped, albeit
in a different case. Difference toan agency's interpretation has led some to believe

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that agencies are too powerful, thatthey are acting outside of the mandates of
Congress and oftentimes even outside the mandateof the President, to whom they largely
report. Justice Scalia, interestingly,was a vehement defender of the Chevron doctrine,
which, given his conservative nature onthe bench, may sound unusual.

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Only time will tell whether or notChevron an hour stay around. But this
is something to keep your eyes on, and we'll be covering it here once
it comes out. That's this episodeof Charge Conversations, a Joe Strecker production.
I'm your host, Brigham account.I'll see you next time