By granting excessive interpretive power to notoriously rogue administrative agencies like the Environmental Protection Agency (EPA), Federal Trade Commission (FTC) or National Labor Relations Board (NLRB), Chevron deference contravenes the Constitution’s critical separation of powers between branches.

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"We have studiously attempted to work our way around it, and even left it unremarked.  But the fact is Chevron and Brand X permit 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 and the framers’ design.  Maybe the time has come to face the behemoth." 

That was Judge and future Supreme Court Justice Neil Gorsuch in 2016, encouraging judicial reconsideration of the controversial “Chevron deference” doctrine, which allows regulatory bureaucracies excessive latitude in bending ambiguous statutes to meet their desired ends.  

With the Supreme Court announcing this week that it will reconsider Chevron v. Natural Resources Defense Council (1984) during its upcoming term, Justice Gorsuch will get that chance.  

For decades, the political left used courts as a reserve bench to impose an agenda that they couldn’t pass through Congress or the democratic process.  Conservatives, however, got wise to that game and set about reclaiming the courts by prioritizing nomination and confirmation of judges like Gorsuch himself.  Today, less able to impose their anti-democratic will through courts, the left increasingly resorts to the sprawling federal regulatory state and its armies of unelected, unaccountable, arrogant bureaucrats.  Think of them as millions of aspiring Anthony Faucis sprinkled across the bureaucratic state.  

Now, in the case of Loper Bright Enterprises v. Raimondo, that honeymoon era of executive agency abuse may finally be reaching its rightful end.  

At issue in the case is a National Marine Fisheries Service interpretation of federal fishery law, which requires fishing boats to allow compliance officials on board.  The underlying statute is silent, however, on whether the agency can force the fishing companies to pay the costs of using the compliance monitors in question.  Lower courts applied Chevron to force fishers to pay those costs.  Rather than address those obscure compliance details, however, the Supreme Court will use this opportunity to reexamine Chevron Itself. 

Providing additional reason for optimism is the fact that far-left Justice Ketanji Brown Jackson has recused herself from this case, meaning that the typical 6-3 conservative majority will now be 6-2.  

In any event, the Chevron doctrine is ripe for reversal.  By granting excessive interpretive power to notoriously rogue administrative agencies like the Environmental Protection Agency (EPA), Federal Trade Commission (FTC) or National Labor Relations Board (NLRB), Chevron deference contravenes the Constitution’s critical separation of powers between branches.  It allows bureaucracies to effectively make law rather than interpret and apply law, while artificially restraining courts’ ability to subsequently review those actions when challenged.  As then-Judge Gorsuch emphasized, Congress has the power to create laws, and courts possess the power to interpret laws, so it violates the Constitution’s careful balance to cede those powers to unelected agency personnel.  

Excessive deference to federal agencies under Chevron also undermines the predictability and certainty of law, since agency interpretations are subject to the whims and changing ideologies of the people who lead and populate those agencies.  In some cases, decisionmakers remain obscured in the vast morass of bureaucracy and unaccountability.  Accordingly, outcomes in cases before those agencies can oscillate wildly depending upon who leads them or who happens to hear cases before them.  By overturning Chevron, the Supreme Court can restore the rule of law by narrowing bureaucrats’ latitude to determine outcomes based upon ideology or whim, thereby providing greater certainty to businesses and individuals appearing before them.  

Bizarrely but perhaps unsurprisingly, the Biden Administration actually claimed in its brief asking the Supreme Court not to accept the case that Chevron “promotes political accountability, national uniformity, and predictability.”  

Of course, the opposite is true.  Allowing bureaucracies nearly unchecked authority to interpret statutes empowers them to operate behind a veil, reaching decisions that are often muddled and impossible for the parties or the public to comprehend.  By overturning Chevron, the Supreme Court can begin requiring agencies to justify their rulings based upon principles of consistent statutory interpretation, thereby boosting accountability, uniformity, transparency and predictability in government.  

It’s time to restore the administrative state to its proper and limited role within our constitutional system, just as courts were steered back toward their more proper role through years of committed effort.  Ironically, Justice Neil Gorsuch represents a triumph of that restoration effort, and he will have the opportunity next term to finally see his suggestion come to fruition.