The Supreme Court’s Loper Bright Enterprises v. Raimondo decision, which overruled the Chevron deference doctrine, limits executive administrative power and empowers the judiciary to police the parameters of separation of powers. Loper Bright was a case about who gets to make what kinds of decisions, which is something with important implications for individual liberty.
Although the Constitution establishes Congress as the legislative branch of government, a large body of law comes from regulations promulgated by unelected executive administrative agencies. The law-making process typically consists of Congress enacting statutes, known as enabling acts, which contain broad policy objectives, and which direct executive administrative agencies to specify the details.
In the 1984 case Chevron v. Natural Resources Defense Council, the Supreme Court held that when Congress’ legislative intent was ambiguous, courts must defer to the agency’s interpretation of a law if it is based on a reasonable construction of the statute.
The rationale behind Chevron was that administrative agencies have special expertise, which justifies respect for their judgments in matters of policy. But while that may be true for matters of policy, the court said that it is not when it comes to statutory interpretation.
The court in Loper Bright held that Chevron must be overruled because it is inconsistent with the Administrative Procedure Act’s requirement that “judges decide all relevant questions of law and interpret constitutional and statutory provisions when reviewing an agency action.”
The philosophical foundation of constitutional government illustrates the problem with Chevron deference. Under John Locke’s social contract theory, individuals give up absolute freedom in return for the creation of a government and laws to protect their rights. Thus, all of the power possessed by the government is derived from the consent of the governed, and it has no more than what the citizenry grants it. That power is deposited in a written constitution, which allocates portions of the whole power of the people to particular branches to perform specific functions.
When one branch of government exercises power that the people have not given it, as in the case of agencies self-interpreting the authority which has been granted to them, or when a governmental branch fails to exercise the power with which the people have entrusted it, such as when courts defer to agency’s own interpretations of laws instead of analyzing it themselves, the government acts outside of its political legitimacy.
Chevron fundamentally altered the separation of powers by giving the executive branch too much power and abdicating the proper power of courts to engage in judicial review.
Under our Constitution, Congress makes the laws, the courts interpret the laws, and the president and agencies enforce and implement the laws. The lawmaking power is the most important, for without law, there is nothing for the executive branch to enforce, nor is there anything for the judiciary to interpret.
But law is often the manner by which rights are infringed. Thus, the legislature is the most powerful and, consequently, the most dangerous branch. That is why the founders established a bicameral legislature, with the law-making power divided between two houses, who are elected in different manners, and whose legislation must be approved by the president, all while being subject to judicial review by the courts to ensure its consistency with the Constitution.
In contrast, executive administrative lawmaking sidesteps important constitutional safeguards of individual liberty. The entire structure of the Constitution is designed to make law-making difficult to ensure the laws which are passed have wide consensus.
But executive law-making requires much less compromise. Presidents appoint agency officials who share their political views and regulatory goals. When presidents are unable to obtain their political objectives through Congressional legislation, they often resort to sneaking it through the back door with administrative regulations, as seen in recent Supreme Court cases holding that agencies exceeded their executive authority in attempting to impose student debt cancelation, vaccine mandates, environmental regulations and eviction moratoriums without Congressional approval.
Deferring to the executive’s own interpretation of laws and shirking from judicial review bypasses another safeguard of individual rights. In disputes over whether an agency has the lawful power to impose a regulation impacting a citizen’s liberty, the government virtually always chooses an interpretation of a statute that grants it the most power. As Justice Neil Gorsuch wrote, Chevron “forces judges to abandon the best reading of the law in favor of views of those presently holding the reins of the Executive Branch,” which “guarantees systematic bias in favor of whichever political party currently holds the levers of executive power.”
Courts are the protectors of individual rights. Citizens are entitled to a fair and impartial adjudication when they challenge a government action. As Justice Clarence Thomas wrote: “The Founders envisioned that the courts would check the Executive by applying the correct interpretation of the law. To safeguard individual liberty, structure is everything.” Article III guarantees that the judicial power shall extend to “all cases or controversies” under the laws of the United States, and that protection is what the court restored in its ruling.