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Commentary

Good Riddance, Chevron: How SCOTUS Gutted the Administrative State

July 10, 2024

In a crippling blow to the administrative state, the U.S. Supreme Court voted 6-3 in Loper Bright Enterprises v. Raimondo to rid federal statutory interpretation of the plague that was Chevron deference, a stain on the law and a gross expansion of federal overreach that resulted from the 1984 Chevron precedent. In the ruling handed down June 28, 2024, the high court held that federal courts may not defer to an agency’s interpretation of an ambiguous statute. 

Chevron allowed the administrative state to ignore the Constitution’s fundamental requirement of separation of powers. The Constitution’s design was no accident; it was intentional. Under the Constitution, Congress was vested with legislative powers, the executive branch was tasked with enforcing the law, and the judicial branch was responsible for interpreting the law. Our Founders’ time-tested invention of checks and balances was at work since the 18th century — until Chevron, that is. 

Chevron blurred those lines, permitting executive agencies to become legislatures making laws, executives enforcing the laws the agencies crafted, and judges interpreting their own regulations. Put simply, Chevron permitted administrative agencies to become the judge, jury, and executioner –– all in one unaccountable, unelected, and unconstitutional scheme.

If that does not run roughshod over the Constitution’s design, I am not sure what would ever count. But now that Chevron has been rightfully buried, the Constitution can rise again out of its ashes. 

Addressing the Elephant in the Room

The Loper case tasked the high court with addressing the “elephant in the room” of constitutional law, as Justice Gorsuch called it while he was a judge on the Tenth Circuit. He stated that Chevron was a “behemoth” that permits “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 framer’s design.”

In other words, Chevron made it easy for the executive agencies to change the entire meaning of federal law on a whim, while the American people were tasked — under threat of criminal or regulatory sanction — with complying with that ever-changing landscape. The Constitution required more; Chevron required less.

Justice Thomas was correct when he said that Chevron permitted courts to stray farther and farther from the Constitution without so much as asking why, and that the Supreme Court should consider the Constitution before blithely giving the force of law to an executive agency’s ever-changing interpretations of federal law. 

From Puddles to Pandemics — with a Bump Stock in Between

The 40-year reign of the administrative state affected wide swaths of the private sector and personal freedoms by demanding compliance with regulations that, now through the lens of Loper, were unconstitutional. 

One of the most recent examples of an administrative agency using Chevron deference to overrule Americans’ constitutional liberties came in Garland v. Cargill where, the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) redefined the term “machine gun” to include a semiautomatic rifle equipped with a bump stock, trampling on the Second Amendment. 

Congress rightly rejected this gross intrusion into Second Amendment liberties. Not being satisfied with Congress’ decision, unelected bureaucrats at the ATF decided they would just reinterpret the provisions of existing law to accomplish what elected officials had just rejected. The ATF used the Chevron deference loophole to overstep Congress and reinterpret the meaning of a different term in the National Firearms Act to prohibit bump stocks anyway. Under Chevron, this unconstitutional act was deemed justified. 

In another glaring example of the nonsense perpetrated by the administrative state under Chevron, the Department of Labor had interpreted the term “coal mine” to include a truck repair shop. The mind searches in vain for how such an interpretation is possible, but that is precisely what occurred in a case out of the D.C. Circuit, and under Chevron, the court permitted that interpretation to stand. 

Not to be outdone by their friends at the Labor Department, officials at the Department of Agriculture declared an 8-inch puddle of water on a South Dakota farm to be a protected wetland and prohibited the owner from farming on his land. (Mind you, the so-called protected wetland was only wet for a couple of weeks per year after the snow melted.) And to add irony to insult, the Department of Agriculture used a federal statute known as the Swampbuster Act to determine that temporary snowmelt was a protected wetland. This last example demonstrates the inestimable impact of Loper Bright and its reversal of Chevron: Itserves as the real “swampbuster” by draining the swamp of specious agency interpretations that have flooded our federal law for far too long. 

Chevron was not merely a temporary puddle in the field of our laws but was an unconstitutional deluge of lawless agency action. 

And as a surprise to no one, bureaucrats also leveraged Chevron to usurp even more control over the American people during the COVID-19 pandemic. During COVID, the Centers for Disease Control and Prevention (CDC) abused the Public Health Services Act to prohibit landlords from evicting tenants, to shut down the cruise ship industry, and to require Americans desiring to travel by plane, train, or bus to wear a mask. Despite lacking any authority to do any of this, the CDC argued that its grossly unconstitutional orders were entitled to deference under Chevron.

Effects Going Forward

The impact of Chevron’s demise cannot be understated. Administrative agencies are no longer permitted to decide what a particular law means; to change the meaning of terms they do not like in a piece of legislation, and to fundamentally alter the scope of federal law on a whim.

The end of Chevron deference means that the Department of Education (DOE) and the Department of Justice (DOJ) can no longer reinterpret Title IX to include gender identity and sexual orientation. Under the Biden administration, the DOE and DOJ have interpreted Title IX to require states to allow biological males to participate in women’s sports, change and shower in women’s locker rooms, and use the bathroom in women’s facilities. And, when it has been challenged by states and other parties, the administration has claimed that its interpretation of Title IX is entitled to deference under Chevron such that the court is powerless to recognize biological reality. The end of Chevron means a return to biological reality under Title IX. 

The Constitution, Not Chevron, Has the Final Word

The Constitution has the final word over the administrative state, and thankfully, the high court now recognizes that. Chevron’s intrusion into the separation of powers has now been relegated to the dustbin of constitutional history.

The death of Chevron means: 

  • The separation of powers returns to its rightful place in the Constitution’s structure, and administrative agencies are no longer permitted to change the meaning of laws Congress has passed with the flick of a pen or the whim of a Cabinet secretary.
  • The administrative state is no longer the fourth branch of government in the Chevron
  • The administrative state has been divested of its unconstitutional excesses and will be forever deprived of power to make its unconscionable choices.

As Ecclesiastes instructs us, “Better is the end of a thing than its beginning.” The end of Chevronwill not just conceptually bolster our freedoms; it will actually bolster them. It restores every American citizen’s ability to stand before a duly appointed judge empowered to decide important questions of law, as originally envisioned by the Constitution, rather than being forced to defer to arbitrary interpretations declared by bureaucratic fiat. The end of Chevron deference requires a return to the traditional functions of the Constitution’s separation of powers, and our Republic gains a return to its rightful constitutional origins as a result.

Chevron eviscerated the Framers’ design by unconstitutionally declaring administrative agencies as the ultimate arbiters of what the rules are, the interpreters of those rules, and the enforcers of those rules. The Founders would have been aghast at that prospect, and so, too, should the American people.

For Chevron and its 40-year reign of agency terror, its death is far better than its unconstitutional and unwelcome beginning. In fact, Chevron’s death is the Constitution’s gain.

Good riddance, Chevron. 

Daniel Schmid is a constitutional attorney and the associate vice president of Legal Affairs with Liberty Counsel.