Good riddance to the administrative state

In a huge win for fishermen—not to mention farmers, women’s athletes, and pro-life doctors—the Supreme Court finally overturned a pernicious administrative law doctrine known as the Chevron deference. The plight of fishermen versus the government might seem to have little to do with gender ideology or abortion. But the fishermen’s case asked whether the federal courts were required to cede the authority to interpret federal law to federal agencies, or whether the courts could instead interpret federal statutes for themselves. After the Supreme Court’s decision, federal agencies may no longer rely on Chevron to justify pushing abortion and gender ideology into law.

Decided in 1984, the Chevron case involved the arcane question of whether the word “source” in the Clean Air Act referred to an entire plant or each smokestack. In deciding the question, the Supreme Court transformed administrative law and placed tremendous power in agency hands. When a federal law fails to speak directly to an issue, reviewing courts were required to defer to the agency’s interpretation rather than interpret the law in the first instance. The only requirement was that an agency’s interpretation be a permissible one (not the best one). This means that agencies were given pride of place in interpreting federal law.

The overruling of Chevron was a long time coming. That doctrine implicated at least two separation of powers principles. First, the doctrine encourages agencies, rather than Congress, to make substantive changes by interpreting open-ended or ambiguous federal law. Chevron deference meant that the executive branch often had the power to not only enforce the law but also determine its very meaning. Yet, Article I of the Constitution gives Congress the power to make law.

Chevron deference was also in tension with Article III’s requirement that the federal courts—and not the executive branch—interpret federal law. Under Chevron, so long as the agency could say that a statute was unclear, the agency got to say what it meant. Writing for the court, Chief Justice John Roberts explained how wrong that approach was: Chevron erred because “agencies have no special competence in resolving statutory ambiguities.”

In overruling Chevron deference, however, the court did not even need to address these constitutional concerns. That’s because Chevron deference also violated the plain dictates of the Administrative Procedure Act. Section 706 of that statute provides that reviewing courts must decide “all relevant questions of law.” It says nothing about deferring to administrative agencies.

Federal agencies have never wielded more power than they do today. They promulgate rules that govern the conduct of everyone from farmers to fishermen to business owners. As Chief Justice Roberts wrote in a different case, agencies govern “every nook and cranny” of everyday life. That reality was exacerbated by the Chevron deference doctrine.

Chevron deference also allowed an administration to enact policies that would never make it through Congress.

Take women’s sports. Title IX was passed to provide equal opportunities for women to participate in sports. It was not that long ago that public schools offered girls very few opportunities to compete in athletics. Enter Title IX. Yet, despite its historical pedigree, the Department of Education has redefined the word “sex” to include “gender identity.” This means that schools may be forced to allow males who identify as females to compete in girls and women’s sports and enter into intimate spaces like locker rooms and showers. After Loper Bright, the Biden administration will not be able to argue that federal courts must defer to its interpretation of Title IX.

Chevron’s reign of deference should have ended long ago. Federal agencies are not empowered by the Constitution to craft federal law and yet that’s what Chevron deference allowed. As Chief Justice Roberts wrote for the court, Chevron was a judicial intervention “that required judges to disregard their statutory duties.” Thankfully, the Supreme Court recognized that the doctrine violated the Administrative Procedure Act and gave federal agencies entirely too much power. Good riddance.