Paul Clement, who argued Loper Bright before the Supreme Court, expands on his hopes for a post-Chevron future.
When the Chevron case was first decided by the Supreme Court in 1984, no one involved realized they were witnessing a landmark decision that would grow the administrative state beyond all recognition in just a few short decades.
Legal observers at the time believed that the ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, which established a two-part test for deciding when a court must defer to a government agency’s reading of laws or statutes, would simply empower a democratically accountable executive to make determinations around the margins.
The reality turned out to be very different, explains Paul Clement, the man who would go on to argue the Supreme Court case — Loper Bright Enterprises v. Raimondo — which reversed that damaging 1984 decision.
“At that point, the argument was about a choice between the judiciary and the executive,” said Clement, founder of the Clement & Murphy law firm and former U.S. solicitor general. “Part of the argument that appeals to people is that if the choice is between the executive and the judiciary, and it’s a truly ambiguous statute, then we might be better off having the executive that’s at least minimally politically accountable making the decision rather than the judiciary that’s completely insulated from political accountability.”
As the years passed, the problems Chevron created became much more apparent.
“Over time, people became sensitive to how Chevron was impacting the entire federal government,” he told NR. “And, particularly, some of the incentives that it created for Congress to essentially defer on a lot of issues and let the executive branch do what one party or the other wanted to do in Congress but might not have had enough votes to do.”
Under those circumstances, members of Congress “could just have their friends in the executive branch try to do the same thing through executive rulemaking.”
Congress delegating such broad authority to administrative agencies has caused more and more policy to be crafted through regulation that the next president can easily overturn, rather than law.
“There are a whole bunch of regulations where the Bush administration had one position, the Obama administration flipped it, the Trump administration flipped that, and now the Biden administration has flipped it back,” Clement told NR. “Particularly in a context like environmental regulation where coming into compliance takes a lot of lead time and enormous costs, that’s a crazy way to run policy.”
In addition to incentivizing governance by ephemeral regulation instead of law, Chevron deference has created a political climate in which Americans view presidential elections as having almost apocalyptic stakes, said the American Enterprise Institute’s Adam White.
“We’re two months away from a presidential election, and we take it for granted that the presidential election is the everything election where we’re voting for one person who is basically going to single-handedly be able to drive what our national policy is,” White said. “Every policy seems kind of up for grabs in a presidential election, and we’ve lost track of how fundamentally weird it is to have the entire national conversation center around the election of one man or one woman. That’s a function of the modern administrative state.”
One symptom of the modern administrative state, is the creation of policy through executive orders, many of which are later struck down by the Supreme Court.
“In the wake of the shooting in Las Vegas, there was an impulse to do something about the issues with bump stocks,” Clement said. “The Trump administration said, ‘Oh, wait a second, we can do this administratively even though ATF’s position for quite a while was that we don’t have the authority under the statute to do anything. The executive branch took all the momentum from Congress, and the net result is that four years later it went to the Supreme Court, which said the executive didn’t have the authority to do it.”
Much of the initial reaction to the Loper Bright decision on the left side of the political spectrum consisted of the claim that overruling Chevron would be a boon to big business. But both Clement and White argued that the end of Chevron will benefit the proverbial “little guy.”
“Some of the victims of Chevron deference are immigrants and veterans and Social-Security applicants, because they’re all dealing with an administrative agency and trying to get the benefits that they’re entitled to under congressional statutes. When the agency rules against them, it’s not shy about invoking Chevron deference,” Clement said.
To White, the state of affairs under Chevron deference has privileged large corporations at the expense of newer, smaller companies.
“Big businesses are the ones that are most well adept at surviving in an environment of constant regulatory changes,” he said. “Big businesses don’t necessarily think it’s perfect, but they’re better equipped to deal with regulatory uncertainty. Things like Chevron deference probably come down hardest on smaller businesses that have to constantly stay up to date with the latest whims of a given agency but don’t have the resources that big businesses had.”
While the Loper Bright decision will not put an end to all administrative rulemaking, it may induce courts to press Congress to write more specific, substantive legislation instead of granting broad authority to executive agencies.
“In Chevron’s aftermath, you’re going to see courts really grapple with statutory language in a way they haven’t had to before,” White said. “Courts have always been in the business of interpreting laws, but these regulatory statutes are sometimes so complex and so vague, and the judges are now going to have to spend more time thinking about what the statutes mean . . . I think the more time the courts spend staring at these statutes, the more the courts are going to throw their hands up and say, ‘You know what? There’s no “there” there in the statute. This really is just a delegation of legislative power to the agency.’ That raises real constitutional questions.”
Ultimately, Clement told NR, Congress taking greater responsibility — or perhaps being forced into doing so by the courts — will only lead to a more functional government.
“It just doesn’t work in the long run to try to win your battles through the courts or through administrative agencies,” he said. “If you want to win, you really have to persuade people that your policy is the best one and then get a real solution passed through legislation.”