Overturning Chevron shifts regulatory power, experts say

July 22 (UPI) -- The U.S. Supreme Court overturned a longstanding precedent last month when it struck down the Chevron doctrine, raising the question: who should be making regulations?

In the Supreme Court's ruling in the case Loper Bright Enterprises vs. Raimondo, Chief Justice John Roberts wrote that the Chevron decision has been misused, based on a "fictional presumption of congressional intent," and has been proven to be "fundamentally misguided."

"Experience has also shown that Chevron is unworkable," Roberts wrote. "The defining feature of its framework is the identification of statutory ambiguity, which requires deference at the doctrine's second step. But the concept of ambiguity has always evaded meaningful definition."

When the court decided Chevron vs. Natural Resources Defense Council in 1984, it gave deference to government agencies to interpret their own statutes and enforce regulations. This deference gave agencies, and the executive branch, greater authority to design and execute policy.

The test for applying the Chevron doctrine has just two steps. First, the court answers the question, "Is the statute in question ambiguous?" If the answer to that question is "yes," the court asks "Is the agency's interpretation of this provision reasonable?"If the answer is again "yes," the court is likely to defer to the agency's interpretation of the statute.

How Chevron doctrine was used

In the 40 years since the decision, the Chevron deference has largely fallen to the wayside at the Supreme Court level, not used since 2016, according to Roberts. However, circuit courts have continued to cite it when they find agency statutes to be ambiguous. In a sense, those courts have found department leaders are the experts on various matters like food and workplace safety and the environment.

"Chevron was first adopted four decades back and was effectively a curb on the judiciary," Kevin Kosar, senior fellow at the American Enterprise Institute, told UPI. "We had a number of decades during which the Supreme Court and federal courts had been very active. The deference handed down by the court said 'We're not experts in various policy areas. In cases of ambiguity, we're going to be deferential to agencies' arguments.'"

"It shifted power to the executive branch," Kosar added.

Ensuing administrations gradually embraced this "power," Kosar explained. Rather than enacting policy strictly through legislation, presidential administrations began to use the rulemaking process more frequently.

"This new decision comes down and pulls back a little bit of deference to the agency," Kosar said. "That power is up for grabs. Who seizes it? The courts? Congress?"

Ambiguity in statutory regulations is oftentimes a feature intended by Congress to give agencies the ability to fill in gaps as subject-matter experts. As Sarah Sorscher, director of regulatory affairs at the Center for Science in the Public Interest, described to UPI, Congress paints with broad strokes.

"The whole reason we have federal agencies who can write regulations is because there are a lot of details that need to be worked out," Sorscher said. "We also have a pretty dysfunctional Congress. It's difficult to get laws passed, even with bipartisan support."

Sorscher's comments about dysfunction in Congress are not specific to the 118th assembly, though the House in particular has experienced an inordinate amount of chaos .

Kagan's dissenting opinion

Justice Elena Kagan , in a dissenting opinion, explained that Congress charges federal agencies with administering rules and that is where the responsibility should remain, not the courts. She noted that agencies are filled with "experts in the field" better equipped to address the technical aspects of rulemaking that the courts "could not hope to" understand.

Kagan goes on to allege that judges have too often taken it upon themselves to make rules in spaces like workplace safety, the environment and health.

"That rule has formed the backdrop against which Congress, courts and agencies -- all have operated for decades," Kagan wrote. "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."

As Kagan alludes to, one of the main concerns sparked by the Supreme Court's ruling is whether regulations that keep food safe, water clean and more will be pulled back.

"Sadly those are the real concerns we should be having," Sorscher said.

The "saving grace," according to Sorscher, is that the popularity of some rules may protect them from serious litigation. Rules such as the 1993 USDA Food and Safety Inspection Service rule that implemented more stringent testing for E. coli in ground beef. This was in response to an E. coli outbreak that caused more than 600 people to fall ill after eating undercooked Jack in the Box burgers.

"Who wants to be the company to come forward and challenge that regulation and argue they should have E. coli in ground beef," Scorscher said. "Hopefully the popularity of some of these will serve as protection. But there's no legal bar against companies challenging a whole host of safeguards requiring nutrition information on packaged food, calorie counts on menus, standards of food safety."

Kosar is not convinced there will be a widespread peeling back of protective regulations.

"If there is an existing regulation that has been around a very long time it's going to be challenging to go and make a case that this regulation is actually illegal," Kosar said. "I would not presume that all of the sudden you're going to have regulations being shot down en masse."

Kosar said companies that have once challenged certain regulations in court have later come to argue in their favor after adopting new policies.

The automotive and energy industries, for example, have undertaken large investments to meet higher clean energy standards. Companies in those industries argued on the side of the EPA when former President Donald Trump 's administration sought to loosen regulations placed by the administration of President Barack Obama .

Kosar also pushed back on the notion that agency expertise should inherently be deferred to.

"The executive branch does have expertise but that doesn't mean the expertise is just pure and operates according to other reasons," he said. "Expertise is frequently deployed in service of policy directed by the White House. It's instrumental expertise."

'Congress in a Post-Chevron World'

Already some members of Congress have called for broad reviews of federal policies, in some cases misinterpreting the decision of the Supreme Court.

Rep. Lauren Boebert, R-Colo., engaged in a tense back-and-forth with EPA administrator Michael Regan last week during a House Oversight Committee hearing , claiming that the court's ruling deemed all agency rules unconstitutional.

This is not the case.

"I would just like to clarify a few things for my colleague from Colorado. The Loper Bright ruling, as you know, said that the courts should not defer to agency rulemaking if a statute is ambiguous. And instead the courts get to determine whether or not what the statute means," explained Rep. Dan Goldman, D-N.Y. "So that would not require any regulations to be reversed or overturned."

The Committee on House Administration will hold a hearing on Tuesday called "Congress in a Post-Chevron World." The purpose of the hearing is to discuss Congress' role in rulemaking moving forward.

Kosar will be among those to testify.

"It goes back to the question: who should be making policy? The executive branch or Congress?" Kosar said.

Experts saw this coming

Experts in government regulations and public policy have forecasted the Supreme Court striking down Chevron for some time.

"It was not operating effectively for a long time and we knew this was coming," Sorscher said. "It's possible not to rely on Chevron because the court can find the statute ambiguous. Another way to avoid using Chevron is, it only applies in situations when an agency has gone through the whole rulemaking process."

Rena Steinzor, Edward M. Robertson, professor of law at the University of Maryland, wrote about it about six years ago. She told UPI that the Federalist Society has targeted Chevron for many years.

The Federalist Society is an influential conservative organization focused on law and public policy. Supreme Court Justices Samuel Alito and Clarence Thomas are strongly tied to the organization, as are the three Supreme Court appointees named by former President Donald Trump: Neil Gorsuch , Brett Kavanaugh and Amy Coney Barrett .

Chief Justice John Roberts disputes that he was ever a member.

Steinzor also observed that the Supreme Court has been setting the stage for a new standard for rulemaking: the major questions doctrine. In the court's 2022 decision in West Virginia vs. EPA, the court ruled that if a regulation is likely to have a major economic or social impact it requires specific instructions from Congress to be adopted.

"The major questions doctrine is totally unclear and classic of this court," Steinzor said. "If it's a question of great social and economic importance then everything is."

The major questions doctrine, it seems, shifts authority toward the courts while striking down Chevron weakens the authority of federal agencies. What Steinzor expects to come next is federal agencies going through an even more arduous process to adopt rules while seeking greater direction from Congress.

"An agency will spend years in the future wringing their hands over old rules and not getting much new done," she said. "They will have to open up the rule for a comment period. Comments will be filed mostly by industry lobbyists because public interest groups don't have the resources to keep up with all this. They'll read and summarize the comments and decide with great trepidation if a rule will remain in place."