Last Wednesday, over the course of three and a half hours of arguments, the conservative and liberal justices on the U.S. Supreme Court jousted over whether to overrule a 40-year-old case called Chevron v. National Resources Defense Council.
The Chevron case is famous among lawyers—it’s among the most cited cases of all time—because it established the principle that the courts should defer to federal agencies when they interpret the law in the course of carrying out their duties. That may not sound like a big deal, but it is. Chevron shields the executive branch from overly intrusive court review, giving it the flexibility to do its work.
But the case is under threat. Conservative justices on the Supreme Court want to dismantle Chevron, believing that deference is improper because courts—not federal agencies—ought to say what the law is. They may have the votes to scrap the case outright; if not, they will almost certainly narrow its scope.
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Wherever the truth lies, ditching Chevron is only one part of the conservative legal movement’s ever more successful campaign to intensify judicial controls over the administrative state. In recent years, the justices have produced a new “major questions doctrine” to restrain agencies that do things of great economic or political significance. They have toyed with telling Congress that some of its delegations are so broad as to be unconstitutional. They are exploring new limits on the types of cases that agencies can resolve. And they seem to have upped the intensity with which they review whether agency decisions are “arbitrary.”
I think it would be very difficult for them to put Chevron back in place after getting rid of it.
Right, but without Chevron, it just means the federal agencies have to go to court to make changes. All of which cases will be filed in the Fifth Circuit and rubber stamped, I’m sure. I think overturning Chevron would be a mild inconvenience for a second Trump presidency.
I don’t know about that. Even rubber stamp courts have dockets they have to get through, so anything Trump wants to happen could take months and he doesn’t like it when things take months.
