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The dryness of the doctrine masks the enormity of what is at stake. Taking its name from the landmark 1984 case, Chevron U.S.A. v. Natural Resources Defense Council, it holds that a federal court must defer to an agency’s interpretation of a statute when issuing a rule, provided the interpretation is “reasonable.” The court argued this was consistent with the idea that Congress could delegate its legislative powers to executive branch agencies. If Congress intended to allow experts to work out the hard questions in addressing a complex matter, the majority held, it made sense to defer to that expert opinion.
This might seem like a straightforward ruling; in fact, it authorized a massive shift in power from Congress and the courts to the president. Most of the administrative agencies subject to Chevron are run by presidential appointments. These officials might have subject matter expertise, but their knowledge does not negate the fact that they make inherently political judgments, which the Constitution envisioned would be made by elected legislators.
Chevron deference also interferes with judicial review. Judges are supposed to be neutral arbitrators of legal disputes. When those disputes involve the construction of a law, it is their responsibility to look carefully at the law, ascertain what it means and apply it to the case at hand. Chevron deference robs them of that power, and the fact that a prior Supreme Court established the precedent does not mean it is correct.
Conservative legal theorists have long wanted to overturn Chevron. They rightly believe difficult political battles must be fought in the legislative arena, and that this is what the Founders intended. That allows the full multiplicity of interests in our large and diverse nation to be involved in the debate. More important, it means the ultimate source of sovereignty in a democratic nation — the people — must consent to the dispute’s resolution. Chevron undermines that order by effectively giving plenary authority to unelected bureaucrats with limited means of accountability.
Progressives, however, don’t seem to care much about this essential constitutional balance. Democratic administrations have frequently stretched or ignored the original intent of a statute to expand their rulemaking authority. This is especially the case in matters addressing climate change, with entities such as the Environmental Protection Agency deriving their authority from statutes crafted decades before climate change became a political issue.
Progressives are right to fear that overturning Chevron will hamper their ability to use administrative action to push through sweeping measures that could never pass congressional muster. But that result could be in the long-term interests of climate change activists. Combating climate change will require significant public sacrifices, and voters would likely be more willing accept those costs if they had more of a say in how those policies are crafted. Likewise, Americans would be more likely to resist any serious climate change policies if they start to see prices go up, jobs being lost or consumer choices being limited because of administrative actions they never heard about.
One need only look to the Netherlands’ current political crisis to see what happens when policies run far ahead of popular consent. The country’s four-party government was clobbered in its recent local elections by a new party fighting proposed nitrogen emissions controls that would decimate farmers. That party, the Farmer-Citizen Movement, now leads the polls and its leader, Caroline van der Plas, would likely become prime minister if the government falls. That’s what happens in a democracy when a government tries to push through policies without persuading the people first.
Chevron’s demise would be only one step in a long effort to return genuine power to Congress and thereby enhance democratic legitimacy. Given our increasingly fragile democratic norms, that would be a ruling worthy of cheers.
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