Late on the second day of
Crapo was criticizing an arcane but highly influential legal precedent known as Chevron deference, or the Chevron doctrine—from the 1984 Supreme Court decision in Chevron v. NRDC—in which the justices give federal agencies the benefit of the doubt when a regulation is challenged in court. The decision, which grants agencies broad authority to interpret laws that are written ambiguously, has been cited tens of thousands of times.
Barrett declined to offer an opinion on Chevron, which has become a valuable tool for agencies looking to institute aggressive environmental rules. Her exchange with Crapo was little more than a footnote in a hearing that focused largely on the abortion precedent in Roe v. Wade. But ultimately, the Supreme Court’s posture toward Chevron could become a defining theme of President-elect
Democrats have long hoped that unseating President
He’ll inevitably face opposition in the judicial system, which has grown increasingly hostile to government regulation. President Trump and Senate Majority Leader
“It’s a big threat,” says Patrick Parenteau of Vermont Law School, an expert on environmental regulations. Courts are “going to demand a whole lot more justification for what the agencies are doing.”
Already, libertarian groups such as the
“More regulatory activity means more opportunities for courts to defer to agencies,” says Steve Simpson, a senior attorney at the Pacific Legal Foundation. “And more opportunities for people like us to challenge that deference. That will happen across the board.”
The roots of Chevron deference lie in a battle environmentalists lost—a 1984 Supreme Court case in which the
The historical ironies of that decision abound. The EPA administrator at the time was
“It eventually evolved into a huge decision that really required courts to defer if agencies’ interpretations were reasonable,” says
Toward the end of his career, however, Scalia turned against Chevron, as conservatives increasingly argued that government agencies were using the doctrine to strip Congress of its legislative authority. But by then, Chevron had become one of the most cited decisions in law. In 2014, the Supreme Court rejected a utility industry challenge to the EPA’s interpretation of the Clean Air Act, citing the agency’s regulatory authority under Chevron. Scalia dissented.
In recent years, the Supreme Court has shown a willingness to reconsider Chevron, or at least to
“The current Supreme Court majority is killing Chevron through disuse,” says
Under the Biden administration, that process would almost certainly accelerate, as libertarian groups and Republican attorneys general sue to block regulations. Lower courts are bound by Supreme Court precedent, but judges at various levels could still rule that the text of a law is insufficiently ambiguous for Chevron to apply. And in theory, the Supreme Court could overturn the decision entirely, creating a whole new framework for administrative law.
Trump’s appointees to the Supreme Court have expressed skepticism of Chevron. As an appeals judge, Gorsuch denounced it as “a judge-made doctrine for the abdication of the judicial duty.” Barrett’s record on regulatory law is less substantial, but court watchers say her strict adherence to textual analysis might make her unwilling to punt an interpretive question to agencies. And Justice
In the end, large portions of Biden’s policy agenda could hinge on the ability of the EPA and other agencies to establish policies that pass muster with at least one of those conservative justices. “You better have a bobblehead doll of Kavanaugh on your desk when you’re writing these rules,” says Parenteau of Vermont Law School. “And ask the bobblehead: ‘Will you vote for this?’”
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