Explainer: Why you should care about ‘Chevron deference’
Acton Institute Powerblog

Explainer: Why you should care about ‘Chevron deference’

Even if you’ve been closely following the Supreme Court nomination hearings of Judge Neil Gorsuch, you probably missed this seven-word statement by Democrat Amy Klobuchar: ““You were clearly talking about overturning Chevron.”

Here’s what Sen. Klobuchar was talking about and why it matters.

What is the Chevron the Senator is referring to? The gas company?

Yes, though indirectly. Chevron, the corporation, was the plaintiff in the landmark Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This case is one of the most important in administrative law and set the standard known as “Chevron deference.”

What was the case about?

The Clean Air Act, which regulates air pollution at the national level, includes a requirement that States establish a permit program regulating “new or modified major stationary sources” of air pollution. The Carter administration defined “stationary source” as any device in a manufacturing plant that produced pollution. But after Ronald Reagan was elected in 1981, his EPA (which was headed at the time by Judge’s Gorsuch’s mother, Anne M. Gorsuch) said that “source” meant the entire plant.

The Natural Resources Defense Council challenged that redefinition in federal court and won. Chevron, which was affected, appealed and the case went to the Supreme Court. The Court ruled in 1984 that when Congress passed a law that did not have a clear meaning, the courts should defer to reasonable interpretations by the federal agency applying the law. The Court said, “The EPA’s interpretation of the statute here represents a reasonable accommodation of manifestly competing interests, and is entitled to deference.” This standard has since been referred to as “Chevron deference.”

Wait, isn’t the judiciary branch in charge of interpreting laws?

We often think that the judiciary is the branch of government responsible for interpreting the law. But because of Chevron deference the executive branch, through the various regulatory agencies, provides most interpretation of statutes. Regulatory agencies handle administrative law, primarily by codifying and enforcing rules and regulations. When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place. Because of the judiciary branch has established the “Chevron deference,” any interpretation that is deemed “reasonable” is likely to be the standard that is used.

What’s the problem with “Chevron deference”?

It depends on how you view the Constitution. If you believe the Constitution was put into place to provide checks-and-balances, then the judiciary “deferring” to the executive on almost all interpretations of administrative law might be a problem.

What’s Gorsuch’s position?

Gorsuch was one of the judges on the 10th Circuit Court of Appeals, who wrote in a 2016 opinion that the Chevron doctrine allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Gorsuch called Chevron a “Goliath of modern administrative law,” and argued it may be time to face “the behemoth.” He suggested the judiciary rather than the executive branch should have the last word on the meaning of the law.

However, in the hearing he responded to Sen. Klobuchar’s claim about overturning Chevron by saying, “I would try to come at it with as open a mind as a man could muster.”

Why should Christians be concerned about Chevron?

The main reason we should be concerned is because Chevron deference gives thousands of technocrats in federal agencies authorization to make decisions that affect our lives in the minutest ways. A prime example are the “mandates” that Obama’s Health and Human Services was able to create by “interpreting” the law in ways that sometimes violated religious liberties. The agencies often interpret a statute in a way that was not intended by our elected representative.

Chevron deference is too powerful a tool to leave to an unelected administrative state that continues to encroach on the freedoms of Americans.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).