Complicated–And Consequential

The virtue of America’s current battle over a woman’s right to control her own body is its clarity. Either a woman has the right to determine whether she will give birth, or the government has the right to force her to do so, irrespective of the consequences for her health and well-being.

It’s either/or. 

Other threats we face are much more subtle and complicated. Policy changes that may seem innocuous or even reasonable on the surface have the potential to undermine rules that demonstrably serve the common good. An example is the passage this year of bills in Indiana, Nebraska, and Idaho that propose to end “judicial deference.”  Judicial deference is a doctrine that requires federal or state courts to “defer” to administrative agencies’ interpretations of agency statutes and regulations. Instead, those bills require courts to apply de novo review — to examine executive agency actions without bothering to give weight to that agency’s interpretation of the statute or regulation in question.

The bills were based on model legislation: the Judicial Deference Reform Act, developed by The Goldwater Institute and the Pacific Legal Foundation. Those bills might not have been necessary, though–our radical, rogue Supreme Court, unconstrained by precedent, appears ready to junk that doctrine, called The Chevron doctrine after the long-ago footnote that established it. 

Why should we care about this arcane bit of jurisprudence? As one recent analysis explained, overturning the Chevron doctrine would allow individual judges to implement their partisan policy preferences instead of abiding by agency expertise.

Under Chevron deference, courts have been obligated for the past half-century to defer to career expert civil servants in agencies who created rules based on their statutory authority when the statutes were ambiguous or silent, as to highly specific and technical areas of regulation. Chevron deference has been used in more than 19,000 cases and is the basis on which Congress has enacted broadly worded statutes granting agencies regulatory authority for the past 40 years. Now, the Supreme Court is poised to throw the baby out with the bathwater by overturning the very authority it directed Congress and federal agencies to operate under….

The court also appeared ready to return to the Skidmore v. Swift & Co. doctrine, which preceded Chevron and, ultimately, would give federal courts more power to implement their policy preferences and ignore agency expertise. As Justice Elena Kagan aptly pointed out, Chevron replaced Skidmore because “judges [were] becoming too partisan in interpreting regulations,” which “dampens that kind of ideological division between courts.” She also reasoned that “Skidmore is not a doctrine of [judicial] humility.” Meanwhile, Justice Ketanji Brown Jackson emphasized that Chevron allows Congress to delegate policy choices to executive agencies and voiced concerns that “if we take away something like Chevron, the court will then suddenly become a policymaker.”

As the linked article notes, the conservative legal movement’s long effort to use the legal system to serve the interests of  corporate behemoths at the expense of sound policy and the broader interests of the American public seems increasingly likely to succeed.

The doctrine requires “deference”–not submission. If evidence produced at trial shows that an agency’s interpretation of a rule is unreasonable, the courts can and should overturn that interpretation. But discarding the requirement that courts should defer--not “buckle under”–is yet another blow to respect for knowledge and expertise. 

Executive branch agencies increasingly deal with matters requiring considerable subject-matter knowledge. Officials of the EPA are highly likely to know more about unsafe levels of arsenic in drinking water than a judge presiding over a case brought by a company that has been fined for exceeding that level in its discharge into a local river. Officials at the FDA have met professional standards for evaluating the safety of food and/or the efficacy of drugs. Recently, we’ve been reminded of the importance of informed FAA oversight of aircraft manufacturers like Boeing. The growing complexities of modern life–in technology, in medical science, in product safety–requires acknowledging the importance of specialized expertise.

The courts have operated under Chevron deference since 1984. That deference has not kept them from invalidating unreasonable or overbroad interpretations of statutes and regulations. It has, however, required judges (who come to the bench with a very different kind of expertise) to listen carefully to the reasons agency personnel interpret a given rule in the way that they do.

Most Americans have never heard of Chevron; in Indiana, Nebraska and Idaho, most citizens are blissfully unaware of the passage of laws discarding the doctrine.

The threat posed by overruling the doctrine is far less obvious than the threat to women’s autonomy–but that doesn’t mean this assault on expert knowledge isn’t significant.


  1. The current “rogue Supreme Court” is unconstrained by morals, human rights and civil and civic Constitutional protection. One Nation Under THEIR GOD now rules us legally, physically, mentally, emotionally and, first and foremost, financially. Jim and Jane Crow laws now encompass all races and genders and are the rule of the land.

  2. The majority of the members of SCOTUS have already shown they will not defer to precedent or the requirement to show standing or even the plain language of the least complicated laws. Is it surprising that they are unlikely to defer to anything else that hinders their desire to remake our country to suit themselves? The Supreme Court can only be reformed following the breakup of the Republicans’ stranglehold on much of our government. Vote Blue!

  3. What JoAnn and Sharon said. This SCOTUS’ majority are NOT conservative in any way. They are backward-thinking in the most unfair, primitive and biased ways. Their “rulings” regarding women’s rights is antediluvian – at best – and smacks of the pre-Christian ownership doctrine directed by men toward women – you know when men could have several wives … a harem of sex slaves.

    Our democracy may not survive this court. Our nation is at extreme risk of failing due to the political/religious/gender-biased idiots now wearing robes of black. How poetically significant. They are all Republican appointees, of course. What else would we expect?

  4. I know I’m preaching to the choir here, but eliminating Chevron is insane. I can think of no reasonable argument for removing it. Why would law school prepare someone to make decisions on how much chemical X is allowed in milk?

    Hopefully, people just keep deferring to agency expertise as the only reasonable thing to do. Being in a red state constantly gets scarier. It’s unfortunate that people like living in blue states so they’re much more expensive, otherwise I’d probably take the family and flee.

  5. It’s demolishing a person’s right to choose. Pretty soon, a government will tell you exactly when to eat, sleep, procreate, and work!

    I still maintain most of the divisiveness happening in society now, has its roots deepen different religious factions! That is extremely dangerous. You can see how sporty events bring out the fanaticism people getting trampled to death beat up in the stands killed in the stand because they have different allegiances. And it’s the same with political parties and religion. Although, when you combine fanaticism with religion, it becomes a whole different beast.

    It doesn’t matter The particular religion, but, because many of the doctrine in many different religion is always used and manipulated by power seekers. That’s exactly what happened at the trial of Christ. The Sanhedrin didn’t want to relinquish any authority because of their stature, and how their stature would change.

    The general welfare clause establishes a certain level of rights. The right we have from the government. We have the freedom to choose. And the government is supposed to uphold that right. It’s a basic human right, and it’s also an explicit religious eat it! That humans are free moral agents, free to choose except when that choice adversely affect your neighbor.

    It seems like the court is leaning towards taking all of the gloves off. No decorum, no choice, being told what to do and what to believe! That pesky “free moral agent” and free to make one’s own choice, You see how easy it would be to control the population as a bunch of Automatons? At that point, the individual ceases to exist and a government of voyeurs is in control.

  6. When I first heard about this case, the thing that frightened me most was the impact on FDA. If one wants to go back to the days of peddlers selling their snake oil, then let’s do this. I personally prefer the current system. I know I’m probably just biased, since I made my living in the administration of medical and rehabilitation research. I think more people would rather take advice from Tony Fauci than TFG when it comes to the next pandemic. Imagine what would have happened in 2020, if it were up to the courts to decide whether the vaccine is the same as bleach or ultraviolet light. The US, would have lost tens of millions of our
    citizens instead of 1.8 million. That’s essentially going to be the case if the courts look at the Mifepristone case, and decide that the Northern District of Texas is correct.

  7. “… knowledge and expertise?” Just annoyances, to quote St. Reagan!
    Hitler had a similar take on what he called “Jewish science,” as in who needs that?

  8. Over 250 years of constant testing and refining, we have continuously moved towards the founder’s dream of a government that serves everyone. That’s comparable to DNA evolution through natural selection, which constantly experiments with random mutation, some of which improves our ability to adapt to different environments. Cultural evolution works the same way.

    But, the forces of governance, DNA, and culture must, in their endless processes, create dysfunction as well as improved function. The good must, over time, displace the bad.

    The MAGA culture is in the process of being displaced. That is why they must destroy the concepts in our Constitution to avoid extinction.

    Does the country have time to allow the natural process to work, or do we have to take the bull by the horns?

    That question fuels the civil struggle wracking the country now.

    Do we have time for the natural process to work its magic, or will present human needs prevail over natural selection?

  9. John writes, “…You see how easy it would be to control the population as a bunch of Automatons?”

    We are already controlled like a bunch of automatons. Our oligarch-owned media agencies are there to control the narrative and tell us what and how to think. As Chomsky says, “their role is propaganda and manufacture consent.”

    The good news is the US has been exposing its weaknesses to all those willing to put in a little effort and venture away from the mainstream. We’ll see how the oligarchs handle the awakening of our younger generations. Based on their reactionary responses, the goal will be to shut down dissent by limiting free speech. The courts will be soon flooded with First Amendment cases. SCOTUS had better watch how it decided every case, or the rebellion would come quicker than anticipated by the oligarchs.

  10. Stare decisis is no problem with the current court. See Dobbs. The fundamental problem with the present court is that the majority wants to legislate from the bench, and to the devil with the doctrine of Separation of Powers. Policymaking is not a power assigned by the Constitution to the judicial branch.

    Another problem is that the current majority is beginning to ignore the Case or Controversy requirement for matters before the court. Specifically, Alito (notably) and others have discussed matters not before the court in individual appeals. It’s as though they are signalling prospective appellants to dream up a factual context that would allow such majority to rule favorably to such appellants in an appeal to the court as presently constituted. We used to call that practice champerty (encouragement of litigation) long before there was lawyer advertising, which in my day could have earned disbarment, but today is routine on roadside signs and the sides of buses.

    It makes no sense to have judges make policy rather than administrators who have expertise in the areas created by the policymaking legislative branch. Such courts already have the power to oversee cases brought by aggrieved plaintiffs claiming wrongdoing and mistakes in the administration in such areas, and as an example, I here note that Dr. Fauci knows more about communicable diseases than all of the nine members of the court put together.

    So how to interpret the majority’s policymaking grab of power unto themselves? I am not sure, but I think they may have been infected with the Trump/Maga example, and having instilled the death of the Chevron doctrine via their idle chatter in cases before them that are in disregard of the doctrine of stare decisis.

  11. I learn something new in this blog every day. Thank you for your tireless posts. I may not comment, but I still read it and appreciate the comments from your readers as well. A BIG THANK YOU!

  12. I still think that TFG should be charged with practicing medicine without a license for telling people on broadcast news to take hydroxychloroquine to prevent getting covid. He also said that if you did catch it injecting bleach could help. People were actually injured due to side effects taking his advice.
    So Supreme Court conservatives are actually promoting policy to have “authority” not based on science and knowledge guide decisions, but who/what they or friends of the court want.
    Seems like those justices are incrementally changing the function of the court to Supreme power.

  13. Dirk, it’s even worse than that. New chemicals (as obvious examples, the various PFAs causing so many horrors in recent decades) are being introduced into products and the environment all the time. With Chevron, it’s likely the EPA and FDA wouldn’t be able to regulate the chemicals until congress passed a law saying they could, and even then–as you say–if the agency learns more and needs to make a regulation tougher, they’d need to wait on congress again.

    It works alongside some libertarian ideas about getting rid of regulations entirely and allowing the market to act as regulator. The idea is that if a company makes a bunch of people sick or otherwise harms them, the general public would somehow know and decide for themselves to stop using the company. But libertarians notwithstanding, it’s basically a GOP desire to get rid of as much regulation as possible, and hinder their application otherwise. It’s insane.

  14. The complexity of water usage in Indiana now and in the future is an example of where respect for expertise is necessary in order to preserve the common good. So far Indiana has not respected its water resources.

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