Editor's note: This piece was co-authored by Jessica Thompson.
In a significant decision in late June, the United States Supreme Court overturned the Chevron deference doctrine in Loper Bright Enterprises v. Raimondo. The Loper Bright case challenged a rule issued by the National Marine Fisheries Service (NMFS) under the Magnuson-Stevens Fishery Conservation and Management Act. The rule required Atlantic herring fishermen to pay for third-party observers on their vessels, a cost previously covered by the government. The plaintiffs, two small fishing businesses, argued that the NMFS exceeded its statutory authority by imposing these costs without explicit authorization from Congress. The Supreme Court ruled that Chevron deference, which previously commanded judges to accept agencies’ interpretation of ambiguous statutes, should be overruled, emphasizing that courts must independently interpret the law.
This ruling reaffirmed the judiciary's role in independently interpreting laws, ensuring that unelected bureaucrats and regulators do not overstep their bounds. However, weeks later, on July 23, Sen. Elizabeth Warren (D-MA), Bernie Sanders (I-VT), and a group of Democratic senators introduced legislation to codify Chevron deference, allowing federal agencies more leeway in interpreting ambiguous statutes.
This proposed legislation is not only misguided but also fundamentally undemocratic. At its core, the Chevron deference doctrine, established in 1984, allowed federal agencies to interpret laws where the statute was silent or ambiguous, provided their interpretation was deemed reasonable. While this might sound practical, it effectively transferred significant lawmaking power from Congress to unelected bureaucrats. The recent Supreme Court decision correctly restored the responsibility of interpreting laws to the judiciary, as mandated by the Administrative Procedure Act (APA), and protected the constitutional balance of powers.
Senator Warren argues that her legislation would prevent "giant corporations" from using "far-right, unelected judges to hijack our government and undermine the will of Congress." This overlooks a critical point: Congress's will should be expressed clearly through legislation, not left ambiguous and open to re-write by unelected regulators. The separation of powers is a foundational principle of our democracy, designed to prevent any single branch of government from becoming too powerful.
Recommended
By reinstating Chevron deference, Warren's legislation would undermine the judiciary's role in interpreting laws and dilute congressional accountability. This shift would place significant power in the hands of federal agencies, which are not directly accountable to the electorate. Such a move expands the scope of government in ways that have historically led to overreach and regulatory overburden, stifling innovation and economic growth.
One example of the Chevron doctrine’s overreach, of which the Left should take warning, is De Niz Robles v. Lynch, 803 F. 3d 1165 (CA10 2015). Mr. De Niz Robles, an immigrant seeking to avoid deportation and separation from his American wife and child, applied for a status adjustment, relying upon a 2005 decision from the Tenth Circuit of Appeals. The Board of Immigration Appeals invoked Chevron to overrule a judicial precedent on which many immigrants, including Mr. De Niz Robles, had relied for relief. While the Tenth Circuit ultimately ruled the BIA’s retrospective application of the law violated Mr. De Niz Robles’ constitutional right to due process, others were not as lucky. As Justice Gorsuch recently explained, “Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different ‘reasonable’ one and in that way deny relief to countless future immigrants.”
Or consider the case of Mr. Thomas Buffington, a veteran injured during his service. The Department of Veterans Affairs, relying on self-serving internal regulations, denied Mr. Buffington disability benefits that Congress promised him by statute. Mr. Buffington’s case exemplified how unelected bureaucrats can thwart the will of the people’s representatives in Congress to the detriment of ordinary Americans, even those who served to protect our country.
If the left wing of the United States Senate believes that stricter regulations are necessary to curb corporate behavior, the appropriate course of action is clear: legislate. As elected members of the highest legislative body in the nation, it is their responsibility to draft clear, precise laws that reflect the will of the people. Vague statutes that rely on an agency to rewrite the law fail to provide clear guidance and shirk Congress’ constitutional duty of defining the limits of regulatory authority. Any other industry would call that shoddy work.
The progressive push to codify Chevron deference into law is a step backward for democratic governance. It is a proposal that sidesteps the crucial role of Congress in lawmaking and undermines the judiciary's constitutional duty to interpret the law. The Supreme Court's recent decision reaffirmed these democratic principles, and any legislation attempting to overturn this ruling should be viewed skeptically. Congress must exercise its legislative authority directly and transparently, ensuring that our nation's laws are crafted with clarity and intent, not left to the discretion of unelected officials.
The role of Congress is to pass laws, not push that responsibility to bureaucrats.
Donald Bryson is the president and CEO of the John Locke Foundation
Jessica Thompson is director of government affairs and general counsel at the John Locke Foundation
Join the conversation as a VIP Member