◼ POLITICS Bloomberg Businessweek December 21, 2020
31THEBOTTOMLINE If Congressis recalcitrant,Bidencantryto
changepolicythroughfederalagencies.Butjudgesmaychipaway
atagencies’regulatorypowersbeforethathappens.FinancialProtectionBureautoregulateWallStreet.
He’llinevitablyfaceoppositioninthejudicial
system,whichhasgrownincreasinglyhostileto
governmentregulation.TrumpandSenateMajority
LeaderMitchMcConnellhavestackedthefederal
appealscourtswithconservativejudges,many
ofthemhandpickedbygroupsintentondisman-
tlingregulations.AndwithBarrettconfirmed,the
6-3conservativemajorityontheSupremeCourtis
likelytochipawayatChevronandotherlegaldoc-
trinesthatgivedeferencetoagencies.
“It’sa bigthreat,”saysPatrickParenteauof
VermontLawSchool,anexpertonenvironmental
regulations.Courtsare“goingtodemanda wholelot
morejustificationforwhattheagenciesaredoing.”
Already,libertariangroupssuchasthePacific
LegalFoundationaregearingupforfightswiththe
Bidenadministrationoverfinancialregulations,
environmentalrules,andnewpoliciestocom-
batthepandemic.They’llbejoinedbya familiar
castofcharacters:Republicanstateattorneysgen-
eral,whofoughtObama’sregulatoryagendainthe
courts.ChallengestoChevronarelikelytobefront
andcenter.
“Moreregulatoryactivitymeansmoreoppor-
tunitiesforcourtstodefertoagencies,”saysSteve
Simpson,a seniorattorneyatthePacificLegal
Foundation.“Andmoreopportunitiesforpeople
likeustochallengethatdeference.Thatwillhap-
penacrosstheboard.”
TherootsofChevrondeferencelieina battle
environmentalistslost—a 1984 SupremeCourtcase
inwhichtheNaturalResourcesDefenseCouncil
suedtopreventtheReagan-eraEPAfromletting
theenergycompanyChevronUSAInc.dodgeanti-
pollution requirements. The court ruled that the
EPA had legal authority to interpret the text of the
Clean Air Act in a way that effectively defanged
environmental protections.
The historical ironies of that decision abound.
The EPA administrator at the time was Anne
Gorsuch, the mother of Justice Neil Gorsuch,
who’s now the Supreme Court’s most vocal critic
of Chevron. And in the 1980s, the late Justice
Antonin Scalia, a conservative icon, championed
the decision.
“It eventually evolved into a huge decision that
really required courts to defer if agencies’ inter-
pretations were reasonable,” says Lisa Heinzerling,
a former EPA lawyer who teaches administrative
law at Georgetown University. “The way Chevron
became the Chevron we know today is actually
with the help of Justice Scalia.”
Toward the end of his career, however,
Scalia turned against Chevron, as conservatives
increasingly argued that government agencies were
using the doctrine to strip Congress of its legisla-
tive authority. But by then, Chevron had become
one of the most cited decisions in law. In 2014 the
Supreme Court rejected a utility industry challenge
to the EPA’s interpretation of the Clean Air Act, citing
the agency’s regulatory authority under Chevron.
Scalia dissented.
In recent years, the Supreme Court has shown
a willingness to reconsider Chevron, or at least to
limit its reach. Writing for the majority in a 2015
decision, Chief Justice John Roberts ruled that
Chevron doesn’t apply to regulatory questions with
“deep economic and political significance.”
“The current Supreme Court majority is kill-
ing Chevron through disuse,” says Joshua Matz,
a Supreme Court litigator at the law firm Kaplan
Hecker & Fink. “Judges are neutering Chevron by
taking an extremely narrow view of the circum-
stances in which a statute leaves any ambiguities.
You can kill the doctrine by narrowing it to the van-
ishing point.”
Under the Biden administration, that process
would almost certainly accelerate, as libertar-
ian groups and Republican attorneys general sue
to block regulations. Lower courts are bound by
Supreme Court precedent, but judges at various
levels could still rule that the text of a law is insuf-
ficiently ambiguous for Chevron to apply. And in
theory, the Supreme Court could overturn the deci-
sion entirely, creating a whole new framework for
administrative law.
Trump’s appointees to the Supreme Court have
expressed skepticism of Chevron. As an appeals
judge, Gorsuch denounced it as “a judge-made
doctrine for the abdication of the judicial duty.”
Barrett’s record on regulatory law is less substan-
tial, but court watchers say her strict adherence to
textual analysis might make her unwilling to punt
an interpretive question to agencies. And Justice
Brett Kavanaugh has criticized Chevron over the
years, complaining about the “culture of ambigu-
ity” in American law.
In the end, large portions of Biden’s policy
agenda could hinge on the ability of the EPA and
other agencies to establish policies that pass mus-
ter with at least one of those conservative justices.
“You better have a bobblehead doll of Kavanaugh
on your desk when you’re writing these rules,”
says Parenteau of Vermont Law School. “And
ask the bobblehead: ‘Will you vote for this?’ ”
�David Yaffe-Bellany“The current
Supreme
Court majority
is killing
Chevron
through
disuse”