Tuesday, February 25, 2020

Justice Thomas wants to bury Chevron deference

My guess is that most non-lawyers don't know how administrative law works. But lawyers who deal with federal regulations know all about it, and if you walk up to them and say "Chevron deference," they know exactly what you're talking about. Chevron is the name of an important Supreme Court ruling from 1984 that says the courts must defer to how regulatory agencies interpret federal statutes. Justice Thomas has announced he wants to do away with Chevron deference.

The case is Baldwin v. United States. The Supreme Court declined to the hear the case on February 24. Thomas agrees the case is not appropriate for Supreme Court review, but he takes that opportunity to explain his objections to the Chevron ruling. If the Court ever adopts Thomas's view, it will represent a major change in how courts interpret regulations, which affect every aspect of our lives, from product safety to environmental protection to civil rights to you name it.

Here is how Chevron deference works. When Congress passes a law, it often makes the language vague or fails to cover every problem or issue that the statute was intended to address. The regulatory agencies, which are part of the Executive Branch, then issue regulations that provide the details that Congress omitted. This means that federal regulations are often more detailed than statutes. These agencies include the Environmental Protection Agency and the Department of Energy. If someone does not like the regulation, they can file a lawsuit asking the court to reject the agency interpretation. The interpretation will stand if the court thinks the regulation is consistent with the statutory intent or purpose. The idea is that the agencies have experts who know the subject matter and are therefore qualified to issue definitive regulations. Chevron deference gives the agencies the benefit of the doubt in interpreting federal statutes, though from time to time the courts will reject an agency regulation.

Justice Thomas argues that Chevron deference is not consistent with the Constitution because our nation's founding charter gives the courts and only the courts the authority to interpret the laws. The Constitution says nothing about federal agencies or regulations. Both are a creation of the administrative state, which began to flourish in the 20th Century and modern life got too complicated, the country grew and we needed bureaucrats and policy experts to supervise the details of federal policy. The Court cannot delegate the judicial power to federal agencies, Thomas writes. While Thomas himself endorsed Chevron deference in a 2005 Supreme Court ruling, National Cable & Telecommunications Assn v. Brand X, he now repudiates that ruling and says it was wrongly decided.

Justice Thomas often advocates in favor of jettisoning Supreme Court precedents that he believes were wrongly decided. The other justices just as often decline to sign onto his views. No one signed onto his statement in the Baldwin case. That does not mean the others are not in agreement with him. The legal community has been speculating for a few years now that the conservative Supreme Court majority may do away with Chevron deference. None of the justices have advanced that argument as explicitly as Thomas. 

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