Friday, June 28, 2024

Those Were The Days

For 40 years, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., (1984), has served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies.  Under Chevron, a court uses all its normal interpretive tools to determine whether Congress has spoken to an issue.  If the court finds Congress has done so, that is the end of the matter; the agency’s views make no difference.  But if the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap, then a choice must be made.  Who should give content to a statute when Congress’s instructions have run out?  Should it be a court?  Or should it be the agency Congress has charged with administering the statute?  The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness.  That rule has formed the backdrop against which Congress, courts, and agencies -- as well as regulated parties and the public -- all have operated for decades.  It has been applied in thousands of judicial decisions.  It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds -- to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.

"Judges are not experts in the field, and are not part of either political branch of the Government." --  Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. (1984)

Those were the days, when we knew what we are not.  When we knew that as between courts and agencies, Congress would usually think agencies the better choice to resolve the ambiguities and fill the gaps in regulatory statutes.  Because agencies are “experts in the field.”  And because they are part of a political branch, with a claim to making interstitial policy.  And because Congress has charged them, not us, with administering the statutes containing the open questions.  At its core, Chevron is about respecting that allocation of responsibility -- the conferral of primary authority over regulatory matters to agencies, not courts. 

Once again, with respect, I dissent.

-- Supreme Court Associate Justice Elena Kagan, joined by Justice Sotomayor and Justice Jackson, dissenting in Loper Bright Enterprises v Raimondo, in which the Supreme Court overturned a 40-year precedent (28 June 2024)

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