Supreme Court’s Chevron Decision Restores Constitutional Order

COMMENTARY: Overruling Chevron is an important first step toward safeguarding religious freedom by restoring the proper balance between the three branches of government.

The U.S. Supreme Court is seen in Washington.
The U.S. Supreme Court is seen in Washington. (photo: MANDEL NGAN / AFP via Getty Images)

Once again, this Supreme Court has handed down a decision that will help restore constitutional order by curtailing the power of federal agencies to misinterpret the law — and by directing lower courts to rely on their own interpretation of ambiguous laws. 

The implications for religious citizens and institutions of the resolution of the combined cases of Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo are highly significant. 

Chevron is overruled,” wrote Chief Justice John Roberts for the Court’s 6-3 majority. He was referring to a 1984 decision, Chevron v. Natural Resources Defense Council, that gave rise to a doctrine of judicial interpretation known as the “Chevron deference.” Under that doctrine, if Congress had not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable. Roberts called this “fundamentally misguided.”

To understand how judicial abdication to the administrative state can place heavy burdens on Americans, just look at the controversy before the Court in Loper Bright and Relentless

In the mid-1970s, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to address overfishing by unregulated foreign vessels in the international waters just off the U.S. coast. Under a delegation from the secretary of the Department of Commerce, the National Marine Fisheries Service (NMFS) had issued a rule requiring the herring industry to pay for the costs, estimated at $710 per day, for observers to board their vessels to collect data about overfishing. 

Two family businesses that operate in the Atlantic herring fishery challenged the rule, arguing that the MSA does not authorize NMFS to mandate that they pay for such observers. Lower courts reviewing the challenges pointed to Chevron and deferred to the government’s rule as a “reasonable” or “permissible” interpretation of the MSA. The Supreme Court granted review in both cases, limited to the question of whether Chevron should be overruled or clarified. 

Since Chevron, the executive branch has morphed into the “administrative state,” in which unelected bureaucrats in more than 400 federal agencies wield power via rule-making. The Chevron deference boosted this administrative state by paralyzing the judiciary, rendering it unable to overrule regulations that lie outside the scope and intent of the governing statutes. 

Such a state of affairs, explained Roberts for the Court’s majority, is inconsistent with the Administrative Procedure Act (APA), a federal law outlining the procedures that agencies must follow, as well as guidelines for courts to review actions by those agencies. Courts are to “decide legal questions by applying their own judgment.” This, therefore, “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference.” 

Critics of the Supreme Court’s decision insist that federal agencies are staffed by “experts” who are better qualified than judges to resolve ambiguities in federal law. The Court disagreed, pointing out, “Congress expects courts to handle technical statutory questions.” It’s also important to point out that the Court left in place the general rule (known as “Skidmore deference”) that judges should give an agency’s statutory arguments respectful consideration, given the agency’s expertise about the statute it administers and the practical and technical issues involved in implementing the law. 

The Court does not overrule prior precedent lightly, as the principle of stare decisis guides courts to follow prior decisions. This principle, however, is not absolute. 

Chevron had become “unworkable,” explained Roberts, for courts because it was so difficult to determine whether a statute is indeed ambiguous. Additionally, he pointed to the Supreme Court’s “constant tinkering with” the doctrine and its failure to rely on the doctrine in eight years as support to scrap Chevron once and for all. Finally, anticipating pushback, Roberts noted that the Court’s decision would not require previous cases relying on Chevron to be overturned. 

A concise concurring opinion by Justice Clarence Thomas added that Chevron deference was at odds with the Constitution’s division of power among the three branches of government. His colleague, Justice Neil Gorsuch, expanded on this point: 

“Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretative rules that have guided federal courts since the Nation’s founding.” 

Not surprisingly, the three dissenters, Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, were apoplectic. Calling the Court’s decision a “jolt to the legal system,” Kagan asserted, “If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides are not going to argue tomorrow about what ‘respect’ requires, I fear it will be gravely disappointed.” 

Kagan warned that lower courts would now call into question prior decisions that relied on Chevron, asserting that “courts motivated to overrule an old Chevron-based decision can always come up with something to label a ‘special justification.’” And, ironically, she disparaged restoring the authority of courts to interpret the law, describing it as giving itself “exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law.” 

So how will the overruling of Chevron benefit religious freedom in America? Daniel Payne, a senior editor for Catholic New Agency, reached out to religious-freedom scholars and advocates whose support for the Supreme Court’s decision was overwhelmingly positive. 

Philip Hamburger, a constitutional law professor at Columbia Law School, said it was “a notable day for freedom in the United States.” He explained that “administrative bureaucrats, especially administrative experts, are not representative of the United States and on average are intolerant of religion, especially relatively orthodox opinions.”

Hamburger is right. Religion in America is under attack by the federal government and Chevron deference often got in the way of courts stepping in to protect religious objectors. 

Eric Rassbach of Becket law group, an eminent religious-freedom attorney, explained that the Supreme Court’s ruling “is likely the death knell for some new federal rules.” 

In addition to noting that this would benefit clients such as the Little Sisters of the Poor, who have objected to the government’s imposition of a “contraceptive mandate” in its administration of the Affordable Care Act, Rassbach pointed to a bizarre recent rule change by the Equal Employment Opportunity Commission in its implementation of the Pregnant Workers Fairness Act (PWFA), obliging employers to accommodate employees having abortions.

John Bursch, the vice president of appellate advocacy at the Alliance Defending Freedom, similarly commented that the Court’s decision comes none too soon. 

“In statute after statute, it’s going to be to the advantage of churches and religious organizations that Chevron is gone, because courts will now have the final say on what the law means instead of unelected bureaucrats,” he said. 

Bursch is particularly hopeful that the Court’s decision will benefit challenges to the Biden administration’s radical inclusion of “gender identity” into Title IX, the federal law that bars sex discrimination in education. 

The Biden administrative state has brazenly pushed the interests of Big Abortion and radical progressive ideologues on the American people with scant regard for religious and moral objections. Overruling Chevron is an important first step toward safeguarding religious freedom by restoring the proper balance between the three branches of government.