To hear some describe the stakes, a pair of cases argued before the Supreme Court on Wednesday could create a watershed moment in American government. Business lobbies and conservative activists see an opportunity to restrain an out-of-control “administrative state.” Progressives fear the court will render the federal government incapable of responding to modern challenges from climate change to artificial intelligence.
At issue is a deceptively arcane matter: who gets to interpret the law when Congress leaves it ambiguous as it often does, sometimes inexcusably, but sometimes unavoidably. The current rule, called “Chevron deference” — after the 1984 case in which the court developed it — instructs judges to uphold challenged regulations as long as they reflect an agency’s “reasonable” reading of a genuinely ambiguous law.
Agencies, the logic goes, have more expertise and on-the-ground experience than judges and are more democratically accountable — albeit indirectly, through the elected president. Absent a Chevron-like doctrine enforcing a degree of judicial modesty, judges could fill gaps in the law according to policy considerations they are poorly equipped to evaluate.
Conservatives see this as an abdication of the judiciary’s power to “say what the law is,” its exclusive purview since Marbury v. Madison. They also see it as backdoor encouragement for sloppy statute writing. This is an updated conservative take on Chevron, to be sure. Initially praised by Justice Antonin Scalia, Chevron was a unanimous ruling to uphold a Reagan administration air pollution regulation that environmentalists considered too lax. During a long run of presidencies that, apart from Jimmy Carter’s four years, spanned the late 1960s to the early 1990s, Republicans controlled the White House and the agencies to which judges were deferring.