There’s been a lot in the news lately about the U.S. Supreme Court’s decision regarding some of the actions against former President Trump.  Another case that hasn’t received as much media play was the body’s decision against what has been termed “the Chevron Deference” which could have a long-lasting effect on how the administrative state does things.

For folks who follow challenges to the administrative state, the Chevron Deference (decided in 1984) has provided administrative agencies a huge leg up over those citizens who were affected by the agency’s actions by allowing the agencies to interpret ambiguous sections of laws passed by Congress.  The Chevron Deference doctrine was a decision by the Supreme Court in Chevron v. Natural Resources Defense Council.  In that decision the Supreme Court initiated a process that has governed administrative rules for the last 40 years.  

The Chevron Deference initiated a twostep process, the second of which declared that “. . . in a case in which ‘the statute [was] silent or ambiguous with respect to the specific issue’ at hand, a reviewing court could not ‘simply impose its own construction on the statute.’ ”(Loper Bright Enterprises v. Raimondo).

The Supreme Court ruled, “. . . The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA” (Administrative Procedures Act).  The justices noted that “Congress in 1946 enacted the APA ‘as a check upon administrators whose zeal might otherwise have carried them to excess on contemplated in legislation creating their office’.”

The impact this decision will have in curbing the excesses of the administrative state could be significant.  Since 1984 the courts have given agencies a strong arm when it came to interpreting rules for Congressional Acts which contain ambiguous language.  The ongoing controversy about what constitutes a “water of the U.S.” is a case in point.  The Environmental Protection Agency (EPA) and the Army Corp (EPA was part of the Chevron Deference case) have expanded the definition of waters of the US to take in dry washes in Wyoming.  Courts, who have struggled with this action, have ruled on the ambiguous wording in the Clean Water Act and then applied the Chevron Deference in favor of the agencies.

In their ruling the Justices wrote, “Chevron insists on more than the ‘respect’ historically given to Executive Branch interpretations; it demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time.”

Unfortunately, I don’t foresee administrative agencies giving up the power Chevron gave them forty years ago without a fight.  These agencies can rightly rely upon the regulated citizens finite financial resources to avoid a protracted legal battle.  The agency can also rely on the taxpayer to pay for that agency’s legal bills.  Even with the overturning of the Chevron Deference, citizens will struggle with the financial leg up the federal government has available.

It will be interesting to see if in these situations the Equal Access to Justice Act will come into play.