Ending Chevron Submission Will Not Tame the Administrative State

The Supreme Court’s recent decisions in Loper Bright v. Raimondo and Relentless, Inc. v. Department of Commerce overturned the long-standing judicial principle of “chevron deference,” marking a significant shift in the balance of power between federal regulatory agencies and the judiciary. Although many on the political right celebrated this change as a victory over administrative overreach, its implications are likely to be more nuanced than some commentators realize.

To understand the significance of this development, one must first understand how the Chevron Doctrine came into being. This legal principle, established in the 1984 case Chevron USA v. Natural Resources Defense Council, was designed to address a perennial problem in American governance: Congress’s tendency to write vague instructions to executive agencies. When legislative language is ambiguous, someone must interpret how much discretion to give regulatory agencies when they create regulations to implement congressional acts.

Chevron’s approach provided a predictable answer to this dilemma through a two-step test. First, judges would determine whether the challenged statute was ambiguous. If so, they would then assess whether the agency’s interpretation of the statute was reasonable. If both conditions were met, courts would defer to the agency’s interpretation, effectively giving regulators broad discretion to define the scope of their own authority.

Recent Supreme Court rulings have dismantled that framework, and the consequences will likely take time to be felt. Perhaps most immediately, an end to Chevron’s compliance would curb more extreme examples of blatant abuse of agency authority, exemplified by the National Marine Fisheries Service’s unjustified mandate to force small fishing companies to foot the bill for federal observers on board. This has been an issue at the center of recent Supreme Court cases.

We may also see an increase in the number of legal challenges to regulation. With Chevron no longer acting as a shield, agencies will face higher standards in defending their interpretations of statutory delegations of authority. Alternative interpretations of the law may now carry greater weight in court, potentially undermining regulatory efforts across a wide range of policy areas.

The result is likely to be a relative strengthening of the judiciary. Judges, rather than regulatory agencies, will now have the final say on what the law means and how it should be applied. This transfer of power from the executive to the courts is no small matter; but it would be a mistake to see this development as merely a victory for critics of regulation.

Just as it will be easier to challenge new regulations that restrict business activity, the end of Chevron’s compliance will make it easier to legally attack deregulatory efforts. Both Democratic and Republican administrations will face a more difficult approach in implementing their preferred policies. In this sense, the real winner may be the status quo, as change of any kind becomes harder to achieve.

In addition, there are practical considerations that could disproportionately affect Republican administrations. Regulatory agency staff and legal staff tend to lean Democratic, creating a talent deficit in conservative administrations. This imbalance could make it harder for Republican-led agencies to craft legal arguments that can withstand increased judicial scrutiny.

It’s also worth noting that conservative jurists, including the late Justice Antonin Scalia, were once among the staunchest defenders of the Chevron doctrine. They saw it as a way to curb the influence of activist judges. While the pendulum may have swung too far toward empowering federal agencies under Chevron, the risk is that we’re now overcorrecting in the opposite direction—toward giving judges too much power.

Perhaps most troubling is the lack of a clear alternative framework to replace Chevron. If we return to an era of judicial activism, in which courts feel emboldened to create precedents more or less from scratch, we may miss the relative predictability of the Chevron era.

Some optimists believe that ending the deference to Chevron could spur Congress to take a more active role in policymaking, perhaps by writing clearer, more detailed legislation. But that hope likely overstates lawmakers’ willingness to change long-standing practices. The incentives that lead to unclear laws—including the need for compromise and the willingness to hand over difficult decisions to other branches of government—remain firmly in place.

Still, after Chevron, courts will have to pay more attention to the text of congressional statutes, increasing Congress’s indirect influence even if congressional behavior remains unchanged.

Still, the most significant changes are likely to occur in the interaction between the executive and judicial branches. Even here, however, the impact may be less dramatic than some predict. Judges, like members of Congress, often prefer to avoid making difficult decisions that could later lead to retaliation. They may also fear overwhelming the judicial system with a flood of regulatory challenges. As a result, we may see the emergence of new forms of deference that are based on a different logic from Chevron but serve a similar function.

In other words, the fundamental balance of our regulatory system may prove more resilient than many expect. Institutional incentives—such as avoiding blame or managing burden—tend to have a stronger impact than abstract legal philosophies. That’s simply human nature, and no Supreme Court decision can overturn these basic realities.

As we navigate the post-Chevron landscape, the real test will be whether our judicial system can impose more appropriate constraints on agency power without becoming more overtly politicized. Only time will tell whether ending deference to Chevron represents a step forward in governance or merely moving from one set of problems to another.