Justice Scalia must be turning in his grave over the Supreme Court breaking up Chevron

Last month, the Supreme Court, presided over by Chief Justice John Roberts, issued a major decision that will impact how federal agencies can make regulations. In Loper Bright Enterprises v. Raimondo, the Court abandoned the two-part administrative law test established in 1984 in Chevron USA Inc. v. Natural Resources Defense Council. The decision will have significant implications across government in the areas of the environment, workplace safety, unfair labor practices, communications, elections, financial markets, and health care.

Under the first prong of Chevron, a reviewing court must determine whether Congress has “spoken directly” on the underlying issue regulated by a federal agency. If so, the court “must give effect to the unambiguously expressed intent of Congress.” But “if the statute is silent or ambiguous on the specific issue,” the second prong of Chevron requires a reviewing court to defer to the agency’s interpretation of the statute if it is reasonable.

Chevron has been closely followed by federal judges for 40 years and cited as a benchmark for judicial restraint, since specialists who work in federal agencies (such as the Environmental Protection Agency and the Food and Drug Administration) have the training and expertise to make policy decisions.

Roberts, who wrote the Loper decision, admitted that his former colleague and staunch defender of originalism, the late Justice Antonin Scalia, was “an early proponent” of Chevron. However, Roberts and Justice Neil Gorsuch have suggested that Scalia later criticized and “began to express doubts” about Chevron, which is simply false. Scalia not only tried to increase deference to Chevron during his nearly 30 years on the Court, but 25 years after the decision, he called it a “watershed moment.”

In a famous 1989 speech at Duke University, Scalia defended Chevron on the basis of practical realities and the presumed or actual intent of Congress. “Congress,” he noted, “now knows that ambiguities it creates, intentionally or not, will be resolved, within the limits of permissible interpretations, not by the courts but by a particular agency, whose political biases will normally be known.” In effect, Scalia was defending “a general presumption” of deference rather than the “statute-by-statute” assessment that preceded Chevron.

During his tenure on the Court, Scalia criticized his colleagues if they failed to respect Chevron deference. In 1987, he rebuked Justice John Paul Stevens, who wrote Chevron — for suggesting that the court could substitute its own judgment for that of the agency whenever it could determine the proper interpretation of a statute. Scalia argued that such an “approach would make deference a doctrine of despair, authorizing courts to defer only if they could not interpret the statute in question.” “This is not an interpretation, but an evisceration of Chevron,” he argued.

Courts should defer to regulators

Scalia defended Chevron’s expansive interpretations. In 2001, he filed a separate dissent when his eight colleagues argued that deference did not apply to informal agency constructions of the law, such as policy statements, opinion letters, manuals, implementing directives, and judicial briefs, because they did not have the “force of law.” Scalia believed that agency decisions, both formal and informal, should be respected by the courts and predicted that the consequences of the court’s decision “would be enormous and almost uniformly bad.”

Scalia also wrote the Court’s 2013 decision extending Chevron’s jurisdiction to agency interpretations within their own jurisdictions. Referring to the “now canonical” two-part Chevron test, Scalia found no reason why courts should not defer to agency interpretations within their own jurisdictions. “The false dichotomy between ‘jurisdictional’ and ‘nonjurisdictional’ agency interpretations,” Scalia explained, “may be little more than a scarecrow, but it is a dangerous one nonetheless.” Responding to Roberts, who dissented in that case, Scalia added, “Like the Hound of the Baskervilles, it is invoked by those who have a larger prey in mind.”

“Make no mistake,” Scalia warned, “the ultimate target here is Chevron itself.”

Scalia revisited one aspect of Chevron deference toward the end of his judicial tenure: what is known as “Auer deference.” In Auer v. Robbins, a decision Scalia himself authored in 1997, the court unanimously held that Chevron deference should apply to an agency’s reinterpretation of its own regulations. At the time, Scalia thought this was a logical corollary of Chevron deference, but over time he came to believe that agencies abused Auer deference by deliberately adopting broad or vague rules to allow for later changes without notice or comment, thereby raising a separate separation of powers issue: The power to make rules should not be combined with the authority to interpret them. Scalia, however, has not changed his mind about deference to agency interpretations of laws, in which Congress cedes power to a coordinate branch of government.

The same year that he called for deference to Auer to be reconsidered, Scalia wrote the Court’s decision expanding Chevron to include questions about an agency’s jurisdiction. In his last full term on the Court, Scalia wrote the 2015 decision in Michigan v. EPA, in which the majority held that the EPA’s interpretation of the Clean Air Act was unreasonable based on Chevron’s two-pronged approach. In a concurring opinion, his more libertarian colleague, Justice Clarence Thomas, explicitly called for a reconsideration of Chevron.

If one accepts the reality of the modern administrative state, which Scalia undoubtedly did, then deference to Chevron is an important means of ensuring a decision-making role for the executive branch. “If Congress is to delegate broadly, as modern times are thought to require,” Scalia wrote in 1989, “it seems to me desirable that the delegate be able to adapt his actions to the times, and that continuing political accountability be assured, by direct political pressure on the executive and by the indirect political pressure of congressional oversight.” “All this is lost,” he added, “if ‘new’ or ‘changing’ interpretations of agencies are in any way suspect.” Scalia predicted that Chevron would endure, “because it more accurately reflects the reality of government and therefore more adequately meets its needs.” “It turns out that Scalia was wrong in that prediction, and it will now be the libertarian justices of the Roberts Court who will make these important policy decisions for the country.

James B. Staab is a professor of political science at the University of Central Missouri in Warrensburg. He is the author of “Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas.”