Is the “Chevron Deference” Dead?
Did this title get your juices flowing? No? Well, it probably should.
On Monday October 2, the Supreme Court of The United States (SCOTUS) announced that one of the cases it will be ruling on is Loper Bright Enterprises v. Raimondo (Loper).
“So what?” you say. Well, this case could have a major impact on government regulation in the U. S.
Loper is challenging the SCOTUS decision reached in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron).
Yeah, I know, these are a lot of words. But here’s the nut of it.
In 1984, SCOTUS ruled in Chevron that an agency of the federal government, like the Environmental Protection Administration (EPA) or the Consumer Product Safety Administration (CPSA) can create new rules as long as the agency’s interpretation is reasonable or permissible. This “deference” was created in Chevron and has been broadly interpreted ever since.
What this means to you and me is that unelected bureaucrats at a federal agency may enact a rule (say the gas stove ban) without any significant input by citizens or Congress. In fact, if citizens complain, the only way that a rule can be undone is by an act of Congress!
Loper is a perfect example of the negative side of this deference.
Without getting into a lot of legal mumbo-jumbo, here’s what happened to trigger the initial lawsuit that has SCOTUS hearing the case:
The National Marine Fisheries Service (NMFS) was given authority by the Magnuson-Stevens Act (MSA) to regulate commercial herring fisheries along the New England coasts.
In New England the MSA has no regulatory provision for individual herring fishing companies to pay the cost of federal monitors to ensure compliance with regulations.
An MSA rule change made for the NMFS required the fishing industry to pay for federal monitors.
Loper Bright Enterprises, a family-owned herring fishing company operating in New England, filed suit in 2020 citing Chevron and challenging the fact that the MSA does not have the legal authority to require the herring fishing industry pay for federal monitors.
In essence, Loper is saying that there is no federal statute that requires them to pay the cost of federal monitors.
This is not an uncommon situation. Here are a few instances of three letter federal agencies passing rules that affect our everyday lives:
The EPA changed rules that ban the sale of incandescent light bulbs forcing consumers to purchase much more expensive LED bulbs.
The recent proposal by the CPSA to ban the sale of natural gas-powered stoves.
Regulations by the EPA to require low-flow shower heads, water-saving toilets and dishwashers that use less water. Each of these rules have been met with consumer resistance.
Those are just a few examples that directly impact the consumer, but there have been hundreds of rules enacted by federal agencies that impact industry. In the vast majority of cases (like Loper) the cost of these rules is borne by an industry but results in higher prices to the consumer.
Chevron helps the federal bureaucracy achieve unpopular goals that can only be overridden by an act of congress.
I’m sure that we all want reasonable regulation. But we must be careful that unelected bureaucrats do not exceed their mandates. We need to have better control of agencies and make them more accountable to citizens of the U.S.
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“If you're reading this...
Congratulations, you're alive.
If that's not something to smile about, then I don't know what is.”
― Chad Sugg, Monsters Under Your Head
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Nowadays EVERYBODY’S Smokin’
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