Federal agency power on the line

Sometime this summer, the U.S. Supreme Court will file its opinion on a case that has the potential to strip federal agencies’ power to interpret statutes, possibly undoing 40 years of precedent known as the Chevron doctrine.

In January, the Supreme Court heard oral arguments in a case that is challenging what is known as the Chevron doctrine. Established in a Supreme Court decision in 1984, the doctrine gives federal agencies the power to interpret ambiguous statutes when they are challenged, taking the issue out of the hands of federal judges.

Chevron doctrine opponents, which include business interest groups, argue that it puts too much power in the hands of agencies that are politically motivated.

On the other hand, supporters contend that federal agencies, not some random judge, are the experts on issues addressed in regulations.

There is consensus among legal experts that the high court will dismantle the Chevron doctrine.

Arguments against the Chevron doctrine

Ironically, the same demographic that made the Chevron doctrine happen – business interest groups – is the same demographic that wants to end it.

Although the doctrine worked in favor of businesses in the context of the Chevron case, interest groups today are claiming the reverse is now true.

One problem is uncertainty. As explained by Justice Brett Kavanaugh during oral arguments, interpretations of regulations are subject to change every four or eight years as new administrations enter the White House.

That raises another point against the Chevron doctrine: political motivation. Opponents argue the doctrine turns regulatory interpretation into a politically biased decision.

Furthermore, the doctrine gives Congress an excuse to ignore difficult issues when writing legislation. Rather than try to fill in the gaps themselves, lawmakers have an incentive to be ambiguous and kick that can down the road to the agencies.

Arguments for the Chevron doctrine

Dozens of advocacy groups representing a variety of issues filed amicus briefs supporting the Chevron doctrine.

The most common argument is that no one is better equipped to interpret regulatory language than the agencies overseeing it. Advocates claim decision-makers at the agency have the knowledge required to make the right choices when making such interpretations. Judges, on the other hand, do not have the expertise required to make those decisions.

In an argument similar to that of those opposed to the Chevron doctrine, supporters claim that overturning the doctrine would lead to politically motivated decisions. A liberal Ninth Circuit interprets things differently than the Seventh Circuit, as seen in broker liability cases. Consequently, judges would be turned into policymakers.

In the same vein, supporters of the doctrine argue that reversing it would flood the federal courts. This would cause two problems. First, it could take years for a court to reach a decision, whereas a federal agency can clarify regulations within a few months. Second, it could lead to a patchwork of single federal regulations – given that there are nearly 700 district court judges, 94 district courts and 13 circuit courts.

Lastly, ambiguity may be intentional and necessary. Lawmakers cannot predict the future but are pressured to pass legislation that addresses emerging issues. Justice Elena Kagan used artificial intelligence as an example. Since that technology is evolving at a rapid rate, Congress can’t possibly address issues that may pop up in the future but are not on anyone’s radar today.

A lot is at stake here. According to a University of Chicago Law Review article, Chevron v. Natural Resources Defense Council is the most frequently cited case in administrative law. Overturning it likely would have sweeping consequences, which could be good in some cases and bad in others. LL