Overturning of ‘Chevron Deference’ Creates Troubling New Legal Landscape

The last term of the US Supreme Court ended with a flurry of decisions, some of which — presidential immunity, access to mifepristone, and bump-stock bans — got the most coverage. For one decision, the coverage was underwhelming, considering the tremendous and unpredictable impact it will have on nearly all aspects of our lives. That decision was to overturn the “Chevron deference.” The name comes from the case, Chevron v. Natural Resources Defense Council.

The world has become increasingly complex since the US Congress was established in 1789. Despite politicians’ ability to have an opinion and speak on absolutely any matter, they do not have the background nor expertise to address more than one or two areas with any authority. When writing legislation involving complex and technical issues, Congress found a workaround — frame the big picture, but delegate the details to the experts in the various departments of the Executive branch.

In use since 1984, the Chevron deference said that this approach to making laws was generally okay, and that courts should defer to the administrative rules when settling cases.

A political hot button

That decision has been a political hot button for a long time, the biggest complaint being that non-elected officials (bureaucrats) are making rules with the effect of law. I do see the point here, although it does overlook that Congress could pass legislation to “correct” any of the unacceptable rules.

Related:White House Sets Path to Circular Economy

Now that the Chevron deference has been overturned by Loper Bright Enterprises v. Raimondo, the courts no longer need to defer to the administrative rules and can use their own judgment. Yikes! If politicians don’t have the background to write detailed laws, judges will be facing a similar situation in their courts.

Yes, courts can bring in expert witnesses — I’ve personally been involved in a half-dozen cases — but deciding between expert opinions can be, and often is, heavily based on subjective factors: The appearance of the expert, their speaking ability, how well the jury likes them, the “grilling,” or lack thereof, they experience under cross-examination, etc. For technical issues, none of that should matter — objective reality should be the only metric.

Judicial decision making v. scientific method

Courts reach decisions completely differently than scientists and engineers. The two parties are obligated to take opposing sides, following rules for what evidence will and will not be available. If one side is not very competent, it may lose even if reality dictates otherwise.

We are now entering our unpredictable future. Don’t like a new administrative ruling? Take it to court! It’s great if the decision goes in your favor, but what guarantees do you have on that? Remember that both sides of a court case are so convinced they are right that they are willing to spend lots of time and money on it.

A laughable opinion

Decisions in different courtrooms on similar or identical cases may not be the same, which means that on appeal, the cases will end up at the Supreme Court, and it has already shown us its lack of expertise: In Ohio v. EPA, Justice Gorsuch famously confused nitrous oxide, aka laughing gas, with the pollutant nitrogen oxide. He made this mistake five times in his majority opinion, with which four other justices agreed.

The plastics industry will be affected by this. All future regulations — environmental, energy, import/export, business, etc. — will be subject to court review. Just don’t ask me about outcomes — my crystal ball overheated showing all the changes and is now a crystal pancake.

A cynic, however, can easily recognize the real winners here — a court decision that leads to more court decisions? That’s real job security for judges and lawyers.