For a 40-year period between 1984 and 2024, our administrative state became its own legislature and judiciary because of an erroneous judicial doctrine known as Chevron deference. This piece examines what Chevron deference is, how it was used to expand executive power, and why it came to an end.
What is Chevron Deference?
Chevron deference is a judicial doctrine that establishes two questions courts must consider when deciding whether an administrative agency’s interpretation of law is correct:
If the legislation is ambiguous and the agency’s interpretation of it is reasonable, Chevron deference requires that the courts defer to the agency’s interpretation of the legislation – even if the court would have interpreted the legislation differently or had previously interpreted it another way.
This largely gives the agency freedom to reinterpret law as they see fit. Defenders of this position make a pragmatic case. They insist that technocratic regulators should set the specifics of policy since they have PhDs and decades of experience in the relevant subjects. Congress and the courts do not know what pH levels are best for the lakes or understand the mechanisms of private credit, so they ought to defer to the interpretation of bureaucrats.
Chevron deference, though, violates the constitutional order. Legal interpretation is the prerogative of the judicial branch, and the courts are not entitled to abdicate this responsibility. When the courts defer to the legal interpretation of the agencies and their unelected bureaucrats, the executive branch gains control over the executive and judicial powers. And when the court defers to the agencies’ formulation of policy, the executive branch appropriates the legislative powers. Under Chevron, therefore, the executive branch encroaches upon the prerogatives of the judicial and legislative branches, undermining the separation of powers principle that the Founders established to stave off tyranny and preserve our liberty.
A History of Chevron Deference
In Chevron v. NRDC (1984), Chevron deference was originally established to settle a dispute over what the word “source” meant in a 1977 amendment to the Clean Air Act of 1963. The statute required any new “stationary source” that would pollute the air to undergo an extensive and often burdensome process called “new source review” (NSR).
At first, the Environmental Protection Agency (EPA) considered “source” to refer to any smokestack, boiler, or individual pollutant producing device. But in 1981 the Reagan administration introduced the “bubble” concept. Under this, an entire facility could be considered a single source of pollution and not need to undergo an NSR when building new polluting devices if the net pollution of the plant did not increase. This made it much easier for plants to upgrade or repair themselves.
The National Resource Defense Council, however, was unhappy with the apparent new ease with which the air could be polluted, and they sued. They won in lower court arguing that Reagan’s EPA cannot simply redefine key words in the statute. They argued “source” has a static meaning which cannot change simply because the EPA wants it to change. Amendments to legislation need to be passed by the legislative branch.
But this ruling was appealed to the Supreme Court. Since Congress did not explicitly state what a “source” was and the EPA’s new ‘bubble’ definition was not unreasonable, SCOTUS overturned the ruling. Chevron deference was born. They erroneously allowed the EPA to change what “source” meant without an act of congress.
On a short-term basis, this was actually a good outcome. This policy allowed facilities to be repaired and modified more effectively, reducing undue government burden. But as principled conservatives we must remember the method of achieving policy is often just as or more important than the result. Rather than expanding the power of agencies, the Republicans should have passed this reform to the Clean Air Act through Congress. The ends do not justify the means.
The Clean Air Act had a set meaning and application for four years. That changed suddenly based on the unilateral action of Reagan’s EPA. The agency, under Chevron deference, essentially rewrote the legislation with zero input from the legislators or the judiciary. Two later cases show the further expansion of the agencies’ power and the problematic principles of the Chevron decision.
In National Cable & Telecommunications Association v. Brand X Internet Services (2005), there was a highly technical dispute about interpretation of Title I and Title II of the Telecommunications Act of 1996. Information services were given less strict rules and regulations under Title I than telecommunication services were under Title II. Brand X, a DSL-based ISP, argued that because of a poor interpretation of the rules their competitors were being classified under Title I while Brand X was under Title II. Brand X believed that ISPs (for example, Brand X) and cable modem services (for example, Comcast) should both be both under the more strictly regulated Title II.
The important nuance here is that while the law from Congress itself was somewhat ambiguous on whether cable modem companies were information services or telecommunication services, in AT&T v Portland (2000) the court indicated they are Title II.
The Ninth Circuit Court of Appeals ruled the FCC had incorrectly considered cable modem as an information service (Title I) based on precedent from AT&T v. Portland (2000). However, on appeal to the Supreme Court it was decided that Chevron deference gave administrative agencies like the FCC the power to redefine language in direct opposition to court precedence. Chevron deference apparently meant not only that the court should give deference to the agencies when the judiciary had not yet ruled but that also the FCC must be deferred to even if the court had previously interpreted the statute differently.
This allowed technocrats at the FCC to override judicial interpretation. Under these circumstances, career bureaucrats could disregard settled case law. After first usurping legislative duties, the agencies now had the power to disregard judicial precedent. Under these circumstances, bureaucrats were literally above the law.
Another example comes with City of Arlington v. FCC (2013). The amended Communications Act of 1934 requires state and local governments to respond to wireless facility applications “within a reasonable period of time.” The FCC decided to interpret this as 90 days for a new antenna and 150 days for everything else.
The cities of Arlington and San Antonio argued this was outside of the jurisdiction of the FCC. The Fifth Circuit Court of Appeals found in favor of the FCC. They applied Chevron deference to questions of jurisdiction.
Earlier applications of Chevron deference involved agencies who were explicitly delegated the power to regulate something by Congress deciding what the words Congress said meant. This ruling, however, points out there is no relevant distinction between jurisdictional and non-jurisdictional ambiguities in statute. If the agency has the power to decide the meaning of the law within their jurisdiction, they also have the power to determine whether the law gives them that jurisdiction.
When applying Chevron deference, the courts permit the agency to decide whether they have jurisdiction, even if the court themselves would have ruled differently. Allowing agencies to have jurisdiction power is dangerous. They should not be setting their own regulatory bounds. That is a power rightly reserved to Congress and the courts. But Chevron deference destroyed this check on administration overreach.
An End to Chevron Deference
In Loper Bright Enterprises v. Raimondo (2024) SCOTUS finally ended Chevron deference. This case settled a dispute over the Magnuson-Stevens Fishery Conservation and Management Act (MSA) from 1976. The MSA required certain fishing vessels to “carry” human observers to monitor their activity and enforce compliance with other regulations. Loper Bright Enterprises, a herring fishing company based in New Jersey, sued. They argued the MSA did not allow the National Marine Fisheries Service (NMFS) to mandate Loper Bright pay the salaries of these monitors, estimated at roughly 700 dollars per day.
The initial district court ruling found the statute unambiguously allowed the NMFS to mandate industry-funded monitors. On appeal, the Circuit Court ruled that the law was in fact ambiguous but that the NMFS’s interpretation was permissible. Loper then appealed to the Supreme Court and argued Chevron deference should be overturned or at least limited in scope.
SCOTUS heard the case and overturned Chevron deference, holding in a 6-2 ruling that it conflicted with the Administrative Producers Act which sets administrative law procedure and dictates that the court must decide these ambiguities of law. The courts took back their power to interpret ambiguous statutes, returning the political responsibility to pass clear legislation to congress and ensuring agencies stay within their constitutionally intended boundaries.
What Now?
The agencies still have some power to interpret ambiguity in law. The courts will grant them the much weaker Skidmore deference, which pre-existed Chevron. Under this doctrine the judiciary can overrule an agency, however, they should give limited deference to the expertise of bureaucrats.
This is the appropriate and reasonable standard. It is true that Congressmen and judges typically do not know much about telecommunications. It is thus reasonable to give experts some leeway under Skidmore deference. However, it was deeply unreasonable to grant them sweeping power under Chevron deference.
Chevron deference allowed agencies to reinterpret statutes that had already been ruled on by the courts, thus rendering the courts essentially subservient to the executive. It also allowed these regulators to set their own jurisdictions, ceding substantial power to the executive that should fall within the legislature.
Although the modern administrative state is far from dead, overturning Chevron deference was a huge blow to its power.
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