Chevron had to go

During the Reagan years, the Supreme Court decided Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984). And yes, it’s named for that Chevron. This ruling created was is called the “Chevron deference” or the “Chevron test”. To be brief, this is the Supreme Court decision that has allowed decades of ambiguous laws to remain on the books.

Now the deference didn’t allow the regulatory agencies to just write whatever regulations they wanted out of whole cloth. They still had to be authorized by statute.

The issue came down to what to do when the statute was somewhat vague or had potentially multiple interpretations. Rather than kicking the statute to the curb and throwing the problem back onto Congress to resolve, the “Chevron deference” allowed regulatory agencies to decide for Congress how the statute should be interpreted.

We saw this, most notably, in King v. Burwell. I wrote about that here.

So Chevron needed to be overruled to end that deference. In short, if a statute could be interpreted multiple ways, or there are demonstrable conflicts within the statute, Congress should be resolving that, not the regulatory agencies. So with Chevron out of the way, hopefully that’s what’ll happen. That the Courts will start declaring more statutes as unconstitutionally vague, shifting the burden onto Congress to amend the statutes in question to alleviate any ambiguities.

But as the Supreme Court would also note, the Federal judiciary has been, since Chevron was first handed down actually, turning away from it. Meaning it was really only a matter of time before it was explicitly overruled – similar to how Trump v. Hawaii explicitly nullified Korematsu, a decision even more wrongly decided than Plessy v. Ferguson.

Of note as well are the States that have explicitly barred their own Courts from using the Chevron deference – Arizona and Florida – or their Courts have issued rulings effectively nullifying Chevron within their own jurisdictions – Mississippi, North Carolina, Ohio, and Wisconsin.

And now with Chevron out of the way, Congress will need to do their job and write clear and unambiguous statutes rather than leaving it up to the regulatory agencies to do their work for them.

And also of note is that the decision in Loper Bright Enterprises v. Raimondo protected any prior decisions and rulings that relied on Chevron, regardless of at what Court, from being vacated. That does not mean those prior decisions cannot be revisited, and Chevron being overruled means those prior cases cannot be relied on as precedent to the extent they relied on Chevron. Only that those cases aren’t also explicitly overruled merely for relying on Chevron.