The Supreme Court Overturns Chevron Doctrine
Commentary by Steven Lofchie
In a 6-3 decision, the Supreme Court overturned the "Chevron" doctrine, which required the courts to defer to an agency's interpretation of statutes that are administered by the agency.
The majority opinion, authored by Chief Justice Roberts, concluded that the Chevron doctrine was inconsistent with the statutory requirement of the Administrative Procedure Act, which "incorporates the traditional understanding of the judicial function under which courts must exercise independent judgement in determining the meaning of statutory provisions." Justices Gorsuch and Thomas joined in the majority decision, concurring in separate written opinions. Justice Gorsuch opined on the role of judges in general; Justice Thomas concluded that the Chevron doctrine "curbs the judicial power afforded to courts, and simultaneously expands agencies' executive powers beyond constitutional limits."
Justice Kagan dissented, emphasizing the practical benefits of the Chevron doctrine; i.e., (i) requiring judges who are not informed as to a specialized topic to defer to the agencies because "agencies are 'experts in the field'" and (ii) because the agencies are making policy judgements, "policymaking [is] best left to political actors," meaning the regulators/executive branch, rather than the courts.
Commentary
Justice Kagan's dissent rests on two principles that seem to be internally contradictory: (i) the agency's personnel are experts in the decision at hand and (ii) the decision at hand is a policy judgment that is "best left to political actors."
To demonstrate the internal contradiction, think of the rule makings and proposed rule makings of the SEC under Chair Gensler during the tenure of President Biden. Virtually all of them have gone forward by overriding dissent, in most cases by a 3-2 party line vote. Had the President been of a different party, with a different SEC Chair, it is likely that none of these controversial rule makings would have gone forward. Yet if the SEC's agenda is driven by "experts" that are making objective judgments, it should not be the case that the SEC's rulemaking is simply a function of who is elected President. It ought to be based on the science, not the politics. If the SEC's decisions are not based on the objective science, but rather on policy (which is to say political), should those decisions be given the expert deference Justice Kagan reasons?
Further, Justice Kagan's argument is wholly inconsistent with the Constitution, which provides that Congress has the power to make laws. Or to put it another way, if the Executive branch is allowed to provide any "permissible" interpretation of those laws that is within some reason, even if it does not seem the better view to the courts, the President is effectively handed a vast amount of legislative power, and the Congress is weakened. Consider how little of the SEC's current agenda could make it through Congress were it required to pass both the Senate and the House. Why then should one assume, as Justice Kagan does, that Congress intended to give any President and his regulators the widest possible latitude to interpret the law?
As Charlamagne tha God might say (more or less), "here is a topic for discussion": Imagine that President Biden and President Trump are equally likely to be elected as the next President of the United States. Should the courts defer to any decision made by the regulators that either of those Presidents may appoint, so long as those decisions are "permissible," even if those decisions would not be considered the best reading under the law?