On June 28th, the Supreme Court ended a 40-year old legal precedent that fundamentally impacts the way our federal government operates. In the decision of Loper Bright Enterprises v. Raimondo, the Supreme Court ruled on a doctrine called “Chevron deference” which allows the interpretation of laws that are ambiguous to rely on agency expertise. In other words, when laws are passed that don’t lay out specifics on how to implement the law, the responsible government agency (eg. The EPA, NASA, Postal Service, etc) is permitted to use its expertise to interpret how to regulate within the law.
The courts have historically had a two-pronged approach to this. They first determine if Congress has spoken directly to the issue or if there is ambiguity. Then, they determine if the agency interpretation is reasonable. Even if the court might prefer a different interpretation, if the agency’s interpretation is reasonable, the agency’s view is upheld. agency’s view is upheld. The court saw this as more efficient, consistent, and as a way of deferring to agency expertise. Now, that efficiency, consistency, and deference is turned on its head.
This might sound a little dry, but it’s a very big deal. Representative Buddy Carter referred to it as “the beginning of the end of the administrative state” in his weekly newsletter last week. He, like many conservatives and libertarians, feels that the federal bureaucracy has become too large and imbued with too much power.
In school, we are taught about the separation of powers within the federal government. The basic explanation is that the legislative branch writes laws, the executive branch implements them, and the judicial branch interprets them through the resolution of arguments. This explanation, however, leaves out the so-called “fourth branch of government” and its role in implementation and interpretation.
Generally, the federal bureaucracy has grown in number of employees over time, with notable spikes in periods when there is an expansion of government programs like the New Deal, in times of war, and in times of economic decline. These growth periods are not met with periods of decrease in the bureaucracy, however, as programs and agencies can be difficult to dismantle. The result is that critics point to a government that has its fingers in too many areas. It turns out a lot of Americans agree.
A 2023 Gallup poll indicated that 54% of Americans believe the government is “trying to do too many things that should be left to individuals and businesses” and 44% think there is “too much government regulation of business and industry.” These numbers fall largely along party lines.
Despite these numbers, when taken individually, many Americans have a very favorable view of specific agencies such as the National Park Service, USPS, NASA, the Social Security Administration, the CDC, and the EPA. That may seem surprising, but all these agencies pulled greater that 55% favorable ratings in 2023.
One of the effects of ending Chevron deference is that these agencies – whether we like them or not – will no longer be able to apply their expertise to interpreting the laws they must implement. For example, let’s say that Congress passes a law related to space commercialization, but the statute has ambiguous language regarding safety standards on private space missions. Previously, NASA would interpret this ambiguity, establish safety standards, and if those standards were challenged, the court would determine if they were reasonable. Now, the courts will be able to independently interpret statutory language which could lead to a completely different sets of standards than those NASA would have set. Further, different courts could interpret the statute in different ways causing inconsistency in regulatory outcomes.
Solutions could be developed in Congress by clarifying statutory language (though that could make it very difficult to pass laws), explicitly delegating authority to specific agencies, or even through the establishment of independent review bodies that could work with agencies to develop sound interpretations. Each of these solutions could help mitigate against the challenges this decision poses.
The question of whether the size and power of the bureaucracy is too large is valid and deserves critique. Regardless, reversing Chevron deference is going to have fundamental impacts on every agency of the bureaucracy with the potential to cause compliance challenges and fragmented regulatory outcomes. Congress, it’s your ball.
Dr. Heather Farley is Chair of the Department of Business and Public Administration and Associate Professor of Public Management at the College of Coastal Georgia. She is an associate of the College’s Reg Murphy Center for Economic and Policy Studies and an environmental policy scholar. The opinions found in this article do not necessarily represent those of the College of Coastal Georgia.
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