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Long Live Judicial Review (shared by John Miller)

THIS IS AN EXCELLENT PIECE BY ILYA SHAPIRO IN CITY JOURNAL REGARDING THE OVERTURNING OF THE CHEVRON DOCTRINE BY THE SUPREME COURT.   ALTHOUGH A LOT OF ATTENTION WAS PAID LAST WEEK TO THE COURTS RULING ON PRESIDENTIAL IMMUNITY, THIS RULING MIGHT BE MORE SIGNIFICANT OVER THE LONG TERM BECAUSE IT ADDRESSES THE ISSUE OF REGULARORY OVER-REACH AND FOCUSES ON THE PROPER ROLE OF OUR THREE CONSTITUTIONAL BRANCHES OF GOVERNMENT

Ilya Shapiro

Long Live Judicial Review

Overturning Chevron is the story of this Supreme Court term.

Jun 28 2024

Whoever thought that an obscure case about fishing regulations would bring down a core part of modern administrative law, the rules that govern the executive-branch agencies that write the rules by which we live our lives? In Loper Bright Enterprises v. Raimondo, the Supreme Court has overturned the 1984 case Chevron U.S.A. v. Natural Resources Defense Council, which told judges to defer to “reasonable” agency interpretations of their operative statutes. Originally meant to streamline the Reagan administration’s deregulatory agenda in the face of judicial obstruction, the doctrine wound up enabling a ratcheting up of bureaucratic bloat.

Good for the Court to recognize that its 40-year-old experiment in rebalancing the relationship between administration and judicial review has failed. And indeed, the Court itself hasn’t used the doctrine in nearly a decade. As Chief Justice John Roberts wrote in his majority opinion (joined by five colleagues): “At this point all that remains of Chevron is a decaying husk with false pretensions.”

The technical ruling here is that Chevron deference violates the Administrative Procedure Act because it gives agencies the power over legal interpretation that’s properly the province of courts. As Roberts put it, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” Federal judges are paid their medium-sized bucks—and, more importantly, given life tenure so as to be free from political pressure—to make the hard calls when laws are ambiguous or otherwise hard to parse. “The very point of the traditional tools of statutory construction—the tools courts use every day—is to resolve statutory ambiguities,” the chief justice continues. “That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.”

As I wrote for City Journal before Loper Bright was argued last fall, Chevron led to agency overreach, haphazard practical results, and the diminution of Congress. Though intended to empower Congress by limiting the role of courts, Chevron instead enabled agencies to aggrandize their own powers to the greatest extent plausible under their operative statutes, and often beyond. Courts, in turn, have gotten lazy in interpreting statutes. It’s become a vicious cycle of legislative buck-passing and judicial deference to executive overreach.

And as I wrote in an amicus curiae briefChevron deference rests on the presumption that Congress won’t overdelegate and that agencies will be loyal agents. But experience has shown that Congress loves shirking accountability, and agencies love pursuing their own interests.

My only regret here is that the Supreme Court petition in Loper Bright was filed before the one for its companion case, Relentless, Inc. v. Department of Commerce, so the consolidated opinion bears the first’s name. It would have been perhaps too on the nose to have the long-derided Chevron case, which has faced legal assault for decades, overturned by one named Relentless (the name of a fishing vessel that plies its trade alongside the Persistence).

But regardless, Chevron is dead. Long live judicial review!

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