The future of the administrative state hangs in the balance. Supreme Court justices will soon decide in a pair of cases whether to reverse a decades-old precedent known as the Chevron deference that would curb federal agencies’ power to regulate everything from Wall Street to the stove in your kitchen. This Washington Examiner series will look at how a departure from this precedent could rip up the regulation nation. Part 1 focused on the underlying court case. Part 2 explored the possible economic repercussions. Part 3 examined what the fallout would be for energy and environmental policy. Part 4 looks at what the end of Chevron could mean in a second Trump administration.
Former President Donald Trump has long promised to curtail the “Deep State” of federal government agencies and drain “the swamp” of bureaucrats in Washington, D.C.
A pending Supreme Court ruling could help him achieve those goals, even three years after leaving office.
The high court will soon issue a ruling that could reshape the balance of power between federal agencies, the judiciary, and legislative branches, while simultaneously disrupting President Joe Biden‘s progressive regulatory agenda.
A ruling that curtails or fully overturns the 40-year-old precedent known as the Chevron deference would put an end to courts deferring to federal agencies’ reasonable interpretations of ambiguous statutes, which many businesses and industry groups say has led to overregulation from unelected government officials.
The ruling itself could be a win for Trump in a roundabout way, as his judicial nominees, especially Justice Neil Gorsuch, who has long opposed Chevron, would be largely responsible. But it could also represent a double-edged sword in a second Trump administration, as the executive branch itself would lose some power.
“The idea is to empower Congress more, relative to the executive branch,” said Mark Chenoweth, president of the New Civil Liberties Alliance. “What we had been seeing under Chevron was a 180-degree flip from administration to administration where they’d change dozens and dozens of rules. And there has been limited ability to challenge some things through the courts.”
Chevron was mostly celebrated by conservatives when the Supreme Court handed it down in 1984, as it was expected to curtail the influence of “activist” judges who were seen as legislating from the bench. But over time, figures on the Right became wary of the ruling, as Washington-based federal agencies were empowered to fill in gaps left by Congress or try to use existing legal language in novel ways.
“Right now, you have agencies sort of rummaging through old statutes and looking for authorities that Congress never gave them,” Chenoweth added.
Trump has never campaigned heavily on Chevron deference specifically. Some of his allies and Gorsuch have instead made the case against it.
Gorsuch, in a 2022 dissent, slammed the doctrine as “plac[ing] a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.”
“Rather than say what the law is, we tell those who come before us to go ask a bureaucrat,” he added.
Trump’s appointees at agencies such as the Department of Education or the Environmental Protection Agency might have less influence if there is no Chevron doctrine during a second Trump administration, but the ruling would still be widely seen as a win for Republicans.
“Less well understood [during the Reagan era] was the extent to which administrative agencies tend in the main to be committed to a policy of maximization,” said Heritage Foundation legal fellow Jack Fitzhenry. “The tendency has been for agencies to adopt policies that push at the outer boundaries of the law.”
Someone who has chosen to spend a career working at the EPA, Fitzhenry argued, is likely to have a high degree of commitment toward furthering its mission.
The cases before the high court, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, were brought by two fishing companies challenging a National Marine Fisheries Service mandate that forces their fishing companies to pay and house at-sea herring monitors. Commercial fishers in the Northeast can pay upward of $700 a day to hire outside observers they are now required to have on board.
Opponents of Chevron argue it would give too much power to the judiciary branch, with Justice Ketanji Brown Jackson cautioning the courts could become “uber legislators,” bringing back the problems that led to Chevron in the first place.
If the Supreme Court strikes down the precedent, the outcome of the presidential contest could affect the immediate future of administrative power because whoever wins will be able to appoint judges to various federal courts. Biden has outpaced Trump in this regard and would be able to continue appointing more progressive-minded judges if reelected.
The Trump and Biden campaigns did not respond to a request for comment from the Washington Examiner.
The Center for American Progress warned in an analysis that overturning Chevron “could upend 40 years of administrative jurisprudence, impede the federal government’s ability to effectively serve the American people, and allow the federal judiciary to amass unchecked levels of power.”
But conservatives argue that it’s Congress that would be empowered, as it would need to be more clear in its intentions when crafting new laws.
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Mike Berry of the America First Policy Institute holds that it’s the “administrative state” that stands to lose.
“It’s important to keep in mind that the administrative state controls and influences more of our daily lives than do the other branches of government,” Berry said. “Despite the sky-is-falling scenarios presented by Chevron‘s defenders, America is much better off under the separation of powers framework our Founders established.”
