MSU expert: Chevron case could upend government power

EAST LANSING, Mich. – A U.S. Supreme Court case brought by a group of commercial fishermen could exacerbate government power struggles. For decades, the legal test known as “Chevron deference” has been used to evaluate executive government agencies’ authority, often allowing government bureaucrats to carry out many forms of regulation. 

Now, this legal doctrine is being challenged in the case of Loper Bright Enterprises v. Raimondo, which could place administrative agencies under much more judicial scrutiny and shift regulatory  authority back to Congress amid a time of heightened polarization. Jordan Cash, an assistant professor of political theory and constitutional democracy in Michigan State University’s James Madison College, answers questions on an overview of this case and what an overturning could mean.

What are the facts of this case?

This case comes out of the Magnuson-Stevens Fishery Conservation and Management Act of 1976, which governs the regulation of commercial fishing. Under that law, commercial fishing companies must allow federal agents — often called monitors or observers — to join them on their fishing boats to enforce certain regulations and prevent overfishing. In 2020, however, the National Marine Fisheries Service, or NMFS, implemented a new interpretation of the statute to institute a rule by which the companies would not only have to allow these monitors onboard, but they would also have to partially subsidize the monitors’ salaries, at an estimated cost of roughly $700 a day. In response to this rule change, Loper Bright Enterprises — a group of commercial fishing companies from New England — challenged the rule, arguing that the statute does not authorize the new rule and that the NMFS’s interpretation of the statute is far too broad.

What is “Chevron deference”?

Chevron deference was defined in the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and states that in cases that involve a government agency’s interpretation of a congressional statute, courts should employ a two-prong test to determine whether or not to uphold the statute. 

The first prong asks if the law passed by Congress has “directly spoken to the precise question at issue,” and if not, then the second prong asks, “whether the agency’s answer is based on a permissible construction of the statute.” In practice, this doctrine has led to the courts giving administrative agencies considerable leeway in how they write and apply their own regulations. One recent study showed when Chevron deference is applied, administrative agencies won their cases 77% of the time.

How has court sentiment shifted on administrative authority?

In recent years, the U.S. Supreme Court has shown a willingness to push back on administrative actions. For instance, in the 2022 case West Virginia v. Environmental Protection Agency, the court held that the EPA went beyond the statutory authority granted to it in the Clean Air Act to devise certain kinds of emissions caps. If these trends are any indication, there is a high likelihood that the court will overturn Chevron deference when it rules on Loper Bright. If it does, it will mark a major shift in how the courts treat administrative rulings and could put the onus back on Congress to be more specific and targeted in how it writes regulatory legislation. 

What could a ruling in favor of Loper Bright mean for the future?

At the most fundamental level, the end of Chevron deference would be a major change in administrative law as agencies would be more restricted in the kinds of regulations they promulgate and would have to tie their regulations much more closely to the explicit text of congressional legislation. More broadly, it could serve as a constitutional wakeup call to the other branches, disrupting the way Congress has interacted with executive agencies for decades. Specifically, members of Congress would have to be much more detailed in how they write legislation and clearer when directing how they expect administrative agencies to carry out their statutes.

While there will always be some discretion in how administrative agencies interpret legislation to write the resulting regulations, that discretion will be more limited if Chevron deference is overturned, and Congress will no longer be able to write overly broad laws and expect the administrative agencies to fill the gap, which has been Congress’s tendency since the 1930s. In a way, the issue gets to a basic tension of modern democratic self-government: the relationship between the political responsibility of our elected representatives — who may not be experts in the subjects they are meant to legislate on — and the administrative bureaucrats who are not elected or directly accountable to voters, but who in many cases are experts in the field they are regulating. How we balance these different attributes to ensure our government is both representative of the people and still effective may become a renewed question depending on how this case turns out. 

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