Chevron is gone, but maybe that's a good thing?

An unpopular opinion from someone on the left.

Image from Pixabay.

Last month the conservative majority of the Supreme Court reshaped the power of the executive branch. In one decision overturning the Chevron doctrine, the Court curtailed administrative agency’s authority to create rules and regulations. In another, it granted presidents absolute immunity for crimes committed while in office, so long as the President was acting in their role of President when committing such acts (and they made the standard for what counts as presidential acts very broad).

Chipping away authority on one hand and granting power with the other. Make up your mind Roberts! In this piece I’ll unpack the first decision on Chevron, explain its significance, and provide some optimism for why, unlike many liberals claim, it may in fact be a positive for the nation long-term.

Chevron is no more

A third of my administrative law class was spent learning about the Chevron doctrine. The TL;DR of the doctrine - first created by the Supreme Court in the 80’s - is that if Congress isn’t specific enough in legislation it passes, then the executive agency tasked with administering the law is allowed to fill in the gaps or ambiguities themselves, so long as such proposals are not “arbitrary and capricious” when compared to the intent of Congress. 

For example, if Congress passes a bill stating everyone “in poverty” should receive a housing stipend, the Department of Housing and Urban Development would be allowed - under Chevron - to use its own expertise in determining what “in poverty” means. It can take comments from the public, consult experts in housing, & eventually land on a specific rule to determine what “in poverty” is. And unless this rule is so out of wack with what Congress wanted – unless it’s deemed “arbitrary and capricious” – the rule will stand.

A few noteworthy implications arose from the Chevron landscape:

1. Rules and regulations would vary widely from one administration to the next, because the executive branch could re-interpret statutes freely. Using the housing stipend example above, Democratic administrations would be more likely to set a lower threshold for what constitutes “in poverty” than Republicans, meaning that a family earning $30,000/year could receive the stipend under Obama but suddenly not receive it under Trump, who could raise the threshold to $40,000. This variance exists even though the law that Congress passed has not changed. From a governance standpoint, this makes the executive branch look a lot more like a legislative body than an enforcing one. And the inconsistency in rules, I believe, is not good for our government.

2. Congress could get away with being lazy. Why would Congress spend time detailing each piece of legislation when they know that administrative agencies could pick up the slack under Chevron? Data on this is tough to find, but some pundits have concluded that Chevron opened the door for Congress to be more vague with its lawmaking process. 

3. Chevron allowed our agencies to adequately regulate the world we live in. A healthy regulatory regime requires flexibility & more importantly, action, and Chevron enabled our executive branch to tackle the problems of our day competently and quickly. Congress is slow – historically slow – and consumers and workers can’t afford to wait for rules to keep them safe. They need action, and they need it now.

Now what?

Now Chevron is gone, so what happens next? Well first of all, agencies will be walking a tightrope as they make regulations going forward. No longer will they be given such wide deference in how they interpret Congress’s laws for final rules. Instead, their decisions will be subject to court reviews all across the country, opening the door for unqualified judges to be making decisions on matters as complex as biopharmaceuticals & telecommunications. 

Congress will need to be more clear if they want something specific. The more vague legislation is now, the more likely it is that Congress won’t get things done that they actually want, because courts could come in at the 11th hour and strike down the rules that agencies propose under such legislation.

In the short term, Chevron’s abolishment will mean that thousands of regulations will be called into question and an innumerable number of them will be struck down. The impact of this is far from clear, but there will be one indisputable winner in the short term landscape: industry. Whether it’s car manufacturers, oil companies or big pharma, less regulations means more space for industry to freely operate - even if they do so at consumer and Americans expense. This is why Koch Industries - the powerhouse behind the conservative think tank Heritage Foundation - has sought to overturn Chevron since the moment it was ruled.

If this sounds bad, that’s because it is. Giving more power to industry isn’t personally what I - or other Democrats – think the country needs today. 

But I have a different view from most progressives in this way. The short term consequences of Chevron’s abolishment may be awful for the regulatory state. But I think the long term impact will be positive for separation of powers and the legislative process. Without Chevron, Congress will need to be more specific when legislating - an abject positive. Without Chevron, pressure from the public for regulations will mount on the branch that should be handling the issues of our day: Congress. Without Chevron, rules won’t fly to and fro depending on the administration in power. And without Chevron, I believe our regulatory state will emerge bolder, stronger, and more reflective of the people in the long term. 

It may take 20, 30, or 40 years. This analysis is not short-term. But such time horizons need to be kept in mind when thinking through decisions that reshape the separation of powers.

Farewell, Chevron. You had a good run.