The U.S. Supreme Court took an important step in defense of both democracy and freedom on Friday when it overruled a 1984 case called Chevron v. NRDC. That decision—which gave federal bureaucracies power to essentially act without meaningful legal limitations—was adopted out of a concern for “judicial restraint.”
It required judges to accept (or “defer to”) legal interpretations adopted by unelected bureaucrats, despite the fact that judges are supposed to be the ones responsible for interpreting the law. The predictable result was that administrative agencies began interpreting laws in ways that expanded their own power. In other words, a “restrained” judiciary ended up meaning an unrestrained bureaucracy.
To understand how Chevron’s “deference” rule worked, consider the Clean Water Act—the federal law that prohibits anyone from “discharging” a “pollutant” into a “water of the United States.” What do these terms mean? Under Chevron, they basically meant whatever the Environmental Protection Agency (EPA) said they meant. And, unsurprisingly, the EPA began adopting the broadest possible interpretations of these terms. It even declared perfectly dry land to be “waters of the United States” (by labeling them “wetlands”), and said that soil that’s already on the bottom of a river was a “pollutant” if it enters the river…even though it’s already there. And if anyone charged with violating the act went to court to challenge its interpretations of these terms, Chevron required the judge to defer the EPA—that is, rubber-stamp the bureaucracy’s decision.
That dangerous legal theory effectively invited bureaucratic agencies to become, as the old saying has it, “judges in their own cases.” Chevron wrecked the checks-and-balances principle that safeguards individual freedom, because it enabled administrative agencies to decide for themselves what the limits on their powers really are, and barred courts, in all but the rarest cases, from doing anything about it.
That didn’t just endanger freedom, it was also profoundly undemocratic. These agencies aren’t accountable to voters in any meaningful way: they’re staffed by hired employees, not elected representatives, and because of Chevron, these employees were free to implement their own policy choices even if Congress had never even considered such policies. Chevron also gave Congress a handy way to get out of its responsibilities: rather than writing laws that specifically declare what is or isn’t allowed, Congress began writing vaguely worded laws that gave broad power to agencies to make up the rules for themselves.
That’s what happened in the case before the Supreme Court, which involved an agency called the National Marine Fisheries Service (NMFS), which regulates fishing in American waters. Federal law also allows NMFS to “prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery”—which is basically carte blanche. NMFS relied on that law to adopt a rule requiring every fishing boat to carry along a government inspector to monitor the crew and report back to Washington about whether they were following various rules and regulations.
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But the question before the Supreme Court wasn’t whether that’s a good idea—it was whether Congress gave NMFS power to impose that requirement in the first place. The justices said no. NMFS relied on the Chevron rule, arguing that judges should yield to its authority, but the Court declared that Chevron is no longer good law. In fact, wrote Chief Justice John Roberts, the deference rule wasn’t even called for by the ordinary federal laws that govern administrative agencies. Since “courts must exercise independent judgment in determining the meaning of statutory provisions” even under ordinary law, there was no reason to carve out exceptions to the constitutional separation of powers—such as the deference rule.
Eliminating deference doesn’t mean rendering the government incapable of enforcing the law. On the contrary, several states—including Arizona, Tennessee, Mississippi, Wisconsin, Indiana, Nebraska, and Idaho—have already abolished their own state-level deference doctrines, and there’s no indication that this has rendered these states incapable of protecting the environment or regulating medicine or doing the many things state governments do. After all, judges can still consider the testimony of agency experts when resolving complicated scientific or technical problems. But overruling Chevron does mean that people charged with violating the law will have an opportunity for a hearing before a neutral decision-maker—just as the Constitution intended.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.