John Powers ‘26 is a public policy major hailing from Brooklyn, NY. He works as a Resident Assistant in Lemon Hall, serves as an officer for the Undergraduate Moot Court Society, and is a member of the Sigma Alpha Epsilon fraternity. Email John at jdpowers@wm.edu.
The views expressed in this article are the author’s own.
At the end of June, the Supreme Court of the United States released what was one of the most consequential cases of the term. Loper Bright Enterprises v. Raimondo was an administrative law case concerning the rules created by federal agencies to enforce congressional statutes.
By restoring the proper balance of power between the courts and federal agencies, the decision ushers in a future we can all be proud of.
Loper Bright overturned a 1984 Supreme Court case called Chevron v. Natural Resources Defense Council. There, the Court established a doctrine known as Chevron deference, which required judges to defer to an agency interpretation of a statute if the statute was ambiguous and the agency interpretation was reasonable. Now, judges must exercise their independent judgment instead of deferring to federal agencies.
Students might mistake this ruling for a niche legal topic with little importance to their personal lives, but higher education and administrative law are substantially related. Consider Title IX, a federal law prohibiting sex discrimination in federally-funded education settings. Loper Bright changes the way judges might review new Title IX rules, like the ones President Biden released in April. This might limit the Department of Education’s ability to issue regulations with the same force it previously held under Chevron. The same applies to other issues spearheaded by the Department of Education, like student loan forgiveness.
In wake of the decision, many will argue that Loper Bright will stall these educational initiatives. Whether that is true is not the focus of this article. Rather, I want to defend Loper Bright’s reasoning. Regardless of the policy implications of the decision, it advances the important principles of separation of powers and constitutional government, both of which should matter above all.
Chevron deference forced judges to give up on their interpretive work once they determined a statute was ambiguous. But as the majority noted, “statutes, no matter how impenetrable, do — in fact, must —have a single, best meaning.” Judges are faced with ambiguous laws all the time, and they employ the tools of statutory interpretation to reach a best meaning. Why should agency cases be any different?
Justice Kagan, dissenting, wrote that Chevron deference assumed Congress would want agencies to fill the “gaps” in statutes since agencies have subject matter expertise and are democratically accountable, unlike judges. Perhaps that was the consensus in 1984, but it is doubtful this consensus remains today. Indeed, the House voted last year to end Chevron deference. Besides, concerns that judges might have trouble interpreting technical statutes are exaggerated. The majority revived Skidmore deference, which allows judges to give some weight to agency interpretations on technical matters.
Justice Kagan also mentioned a Medicare provision mandating the Department of Health and Human Services to adjust hospital reimbursement rates across geographic areas. Here, the term “geographic areas” makes the statute ambiguous since it could be defined as cities, counties, etc. Justice Kagan wrote that deference to the agency’s choice of definition would be apt here. Agencies could, she wrote, “gather hard information about what reimbursement levels each approach (definition) will produce.” Agencies, unlike judges, could further “explore the ease of administering each [definition] on a nationwide basis or confer with the hospitals themselves about what makes sense.”
Yet absent clear instructions that HHS should be allowed to define “geographic areas,” Congress already decided “what makes sense.” The dissent would be fine with agencies picking a definition for “geographic areas” that comports with what hospital administrators want instead of trying to honor the people’s wish and uncover the meaning of the term Congress enacted. This was exactly the issue with Chevron: it perpetuated biased interpretations role playing as “reasonable.” And until recently, judges across this country were required to take part in that charade.
Almost as soon as the decision was released, the chorus of detractors began singing. Ian Millhiser of Vox called the decision a “radical reordering of the separation of powers.” However, Chevron, not Loper Bright, radically reordered the separation of powers. In recent decades, Chevron enabled immense swings in executive policy at the start of every presidential administration, making routine a system of government incompatible with constitutional values. Instead of our elected officials writing the laws we live under, there has been a marked shift towards that responsibility being transferred to unelected bureaucrats.
With remarkable contempt, Millhiser claimed, “Loper Bright expands the Court’s authority so that it is also the final word on thousands of questions that hardly anyone cares about at all…”
First, should any branch of the government but the judiciary have the “final word” on the interpretation of statutes? It seems I forgot when we changed our enduring constitutional framework.
And second, Millhiser should tell the plaintiffs in Loper Bright that “hardly anyone” cares about their case. The plaintiffs were family-owned fishing businesses that operated in the Atlantic herring fishery for decades. A 2020 agency rule requiring them to pay for on-board government fishing monitors would have cost $700 per day, jeopardizing their business operations. The Magnuson-Stevens Fishery Conservation and Management Act, the law under which the Department of Commerce approved the rule, says nothing about these fishermen being required to pay for on-board monitors. Nevertheless, the lower court ruled against the plaintiffs, citing Chevron deference.
“That monitor will make more [money] than myself,” said plaintiff Stefan Axelsson in a promotional video by the Cause of Action Institute.
It’s not surprising that these everyday Americans were nearly crushed by Chevron’s faults. In his concurrence, Justice Gorsuch told with painful clarity the stories of a disabled veteran and immigrants who suffered under the weight of ever-shifting agency interpretations enabled by Chevron. I concede Loper Bright benefits some corporations and the powerful looking to challenge administrative regulations but it also protects small business owners, ordinary citizens or even immigrants from administrative overreach. In essence, the result of the decision is not as one-sided as some have characterized it.
“We thought we were pretty much dead in the water,” said plaintiff William Bright in the aforementioned video.
Luckily, it is Chevron, not those businesses, that is dead in the water now.