In the words of Slate political writer Mark Joseph Stern, “[It’s] hard to overstate the impact of this seismic shift.”
The Supreme Court's reversal of Chevron constitutes a major transfer of power from the executive branch to the judiciary, stripping federal agencies of significant discretion to interpret and enforce ambiguous regulations. Hard to overstate the impact of this seismic shift.
— Mark Joseph Stern (@mjs_DC) June 28, 2024
The Supreme Court today far exceeded expectations by completely reversing the holding of the 1984 case Chevron U.S.A. Inc. Natural Resources Defense Council, Inc. That case laid out what has come to be known as Chevron Deference, a legal principle that gives broad authority to federal administrative agencies in instances where Congress leaves statutory rulemaking authority either vague or ambiguous (or intentionally wide open to interpretation).
This is a very complex topic, and I am going to just quickly lay out why this is important, but I am going to follow that up below with a deeper dive into what this means and where I think things are heading because while we are obviously focused on how this impacts specific issues like gun control, today’s decision in Loper Bright Enterprises v. Raimondo is, as Slate points out, “seismic.”
I want everyone reading this to be the most educated person in the room because this is likely to be a major political issue for the remainder of the election cycle and it’s important that we can articulate the issues here.
The Impact on Gun Control
This is the very short version. Chevron Deference basically requires that, in instances where an enabling statute is ambiguous, courts should resolve those ambiguities in favor of rulemaking agencies who, presumably, are in the best position to resolve the ambiguity that Congress left open.
During the Biden administration, Congress has had little traction in advancing the gun control agenda and, in response, the ATF has taken a very broad view of its statutory authority, literally inventing ambiguity where there is none to broaden its rulemaking authority (the pistol brace ban and the frames and receivers rule are all examples where the ATF had suddenly decided that relatively clear laws are ambiguous, in some cases in complete contradiction to the ATF’s own prior technical determinations). All of that is undergirded by Chevron Deference. The Court today has made clear that the authority they claim to have does not exist and that they are bound by the Administrative Procedures Act.
The long and short of it is that this is a massive blow to ATF overreach.
Now for the deeper dive.
The Shortest History in Agency Law That Has Ever Been Written
It’s really important to understand how we got here. So here is our Nation’s entire history of administrative law in about a paragraph or two:
Many administrative agencies fall under the Executive Branch (the White House) and have existed since the founding of the Nation. For the majority of the first 120 years of American history, the reach of federal agencies had been fairly narrow due, in large part, to the limited budget of the Federal Government.
In 1914, the modern system of both taxation and monetary policy was born with the invention of the IRS and the Federal Reserve. This facilitated the entry of the United States into foreign wars like World War I by allowing the government to rapidly increase both revenue and spending. In 1929, the stock market crashed and the Great Depression began. The Hoover Administration largely failed to contain the crisis and FDR swept in with wide ambition to end the Depression. He did so with the New Deal, which was a massive overhaul of executive authority and radically expanded the scope of federal agencies to stimulate the economy through government spending, hiring in federal agencies, etc. The New Deal was such a massive restructuring of executive power that, while FDR maintained broad political support throughout his tenure both in his handling of the economy and World War II, Congress, over a ten-year period, took action to check that massive authority by passing the Administrative Procedures Act (the “APA”), taking effect in 1946 after FDR died.
The APA is a bit like the Constitution for federal agency law; it helps preserve the federal system of checks and balances but, for our purposes, it helped define the role of judicial review for agency-made rules and regulations. In a nutshell, under the APA, agency-made rules and regulations must conform to the U.S. Constitution and the statutory authority given to that agency by Congress and, even if the Court finds that a rule is unwise, it will stand as long as the rule is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
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This worked to narrow agency authority in rulemaking. Just so we are super clear in our understanding, a federal agency cannot invent for itself rulemaking authority. Congress must first enact a law (a federal statute) that enables the agency in question to create further regulation.1 Fast forward to the late 1960s. With the increasing focus of the Nation on the environmental impact of industrialization (particularly post-World War II where the rapid buildup of industry around the war effort created significant environmental impacts, notably here in New Jersey), the need for environmental regulation became more apparent and Richard Nixon established the Environmental Protection Agency in 1970. That led to a blooming of wide sweeping laws and regulations around clean, clean water and beyond.
In that period, I would submit that the areas of overreach were more inadvertent, not intentional and in reaction to the perhaps inadvertent overreach, an array of legal challenges to agency authority arose culminating in the 1984 Chevron case. I think it’s important to note that in 1984, the Court was reviewing a period of rapid, perhaps well-intentioned, regulatory expansion and more inadvertent overreach since Congress was regulating a complex rapidly evolving, highly technical area. The holding in Chevron narrowed the APA to allow federal agencies to fill in the blanks the Congress left open but I think the context of that is extremely important.
The Court, in Chevron, may have had the right intentions itself but the unintended consequence of that decision was massive.
The Court, in Chevron, opened the door to abuse by both Congress and federal agencies. Now Congress could intentionally make laws vague and federal agencies could have much, much greater discretion in making and changing rules and regulations. Since 1984, Chevron Deference has been relied on in over 18,000 court cases!
This has led to what many term the explosion of the “Administrative State” and it’s problematic for many reasons. As Justice Kavanaugh previously pointed out during oral arguments, this framework “ushers in shocks to the system every four or eight years when a new administration comes in.” With such broad discretion in the hands of federal agencies, with any changing of the guard in the White House, our laws completely change and that is not in any way consistent with the average American’s understanding of checks and balances.
And there you have it: 200 years of American legal history.
So where is this going? As discussed, this decision reigns in overreach by agencies like the ATF across the board. But make no mistake. This is going to be a huge political issue and the focus in the coming months will have nothing to do with the ATF. Liberal-leaning media will claim that Republicans and conservative Justices on the Supreme Court just destroyed the ability of the government to fight things like climate change.
We can absolutely celebrate a major victory here vis-à-vis the ATF. But we should be ready to intelligently push back against the obvious political response to this. There is going to be a groundswell of Pollyanna pundits that will be claiming the sky is falling. It will be particularly ironic since this massive aggregation of legislative power in the executive branch is what concerns them about a Trump presidency, the idea that one man in one office can radically reshape the legal landscape of this country. The end of Chevron Deference restores checks and balances. On some level, every American should rest easier.
Maybe now we can focus on fixing Congress. Because they are going to have a lot of work to do to fix forty years of “ambiguous” statutory authority.
- For example, the Congress can pass a law that says “The Interstate Highway Safety Act of 2024 is hereby enacted to improve motor vehicle safety on federal interstate highways and therefore the Department of Transportation is hereby authorized to enact rules and regulations relating to safety features on private and commercial vehicles. Then the DOT passes rules based on that authority requiring safety belts, headlight and taillight brightness standards, airbags, etc.”
