The recent US Supreme Court decision in Loper Bright Enterprises v. Raimondo, which overturns a long-standing precedent called the Chevron deference, is representative of a broader transfer of regulatory power from government agencies to courts.
In the case Loper Bright Enterprises v. Raimondo from the October 2023 term, a 6–3 majority of the Supreme Court overturned its 1984 Chevron v. Natural Resources Defense Council decision, under which administrative agencies (rather than judges) were empowered to make reasonable interpretations of ambiguous statutes. The Chevron decision had been the fulcrum of the balance of power between courts and administrative agencies. Chevron’s fall has prompted predictions that large portions of the administrative state are now at risk of judicial meddling or deconstruction, from protections for workers by the Occupational Safety and Health Administration to regulations on greenhouse gases by the US Environmental Protection Agency (EPA).
To be sure, the shift in power toward courts in Loper Bright is not new. The Chevron deference has been dead at the Supreme Court for a decade, and the court’s antipathy toward administrative agencies has been well established by other changes in legal doctrine, most relevant being the “major questions doctrine” announced in West Virginia v. EPA in 2022. Policy wonks will be well familiar with this trend in light of the court’s recent rejection of a series of environmental rules, including the Clean Power Plan.
But critics of Loper Bright are correct in the broader sense that the judicial aggrandizement it illustrates is a big problem, concentrating decisionmaking power in judges and other lawyers to the exclusion of other experts, such as scientists; engineers; and, yes, even economists. Loper Bright also sharply reduces the power of Congress relative to life-tenured judges, weakening democratic control over policy. We, as have others, refer to this shift away from democracy as the coming “juristocracy.”
Agencies get their power from statutes passed by Congress. EPA has specific powers and duties granted to it under statutes like the Clean Air Act. Much of the time, the limits of those powers are clear. But what if a dispute arises? General consensus acknowledges that purely legal disputes about agency power should be resolved by courts (a decision reached in Marbury v. Madison).
But in reality, few questions are purely legal. (And fewer still are clearly purely legal.) An example may help illustrate. Congress frequently makes broad and open delegations of power, such as when it tells EPA to set air quality standards “requisite to protect the public health.” Implicit in this charge is that the agency will enlist doctors, scientists, and other experts to marshal scientific evidence to define a standard that offers such protection. Of course, not everyone will agree with whatever standards the agency sets. And beyond some point, the standards might be so restrictive (or so permissive) that they are not just unwise but violate the law, exceeding (or ignoring) the congressional delegation of power to the agency.
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Who decides when that overstep has happened—when the merely controversial or ill-advised becomes illegal? Under the old Chevron rule, agencies operating within their expertise got some deference, though how much depended on the judge and changed over time. Certainly, if a statute were clear on its face, or an agency interpretation was unreasonable, a court could reject it. But in between, where scientific issues met legal considerations, agencies had some flexibility (and with that flexibility, accountability).
For Chief Justice John G. Roberts in Loper Bright, the question of who decides legality is much simpler: “[A]gencies have no special competence in resolving statutory ambiguities. Courts do.” That sounds nice, but it’s a superficial platitude. The law professor among us would give it low marks if the argument came from a student. Whether a standard is “requisite to protect the public health,” like countless other delegations of power to agencies, is not a purely legal question. And even if we grant that some purely legal questions really could exist, Chief Justice Roberts doesn’t address the obvious follow-up: Which questions qualify as purely legal? He says nothing about that meta-question, but the impact of Loper Bright is clear: judges, and judges alone, decide what constitutes legality.
The court’s shift away from deference is but one of many tools it has deployed against agency power; perhaps even more important is the court’s “major questions” doctrine, under which delegations of power to agencies that ordinarily would be legal may be invalidated by judges if those delegations fail to cross an extra-high bar of clarity.
The result of this shift in legal doctrine is a profound concentration of power in one discipline (the law) and one small group of people (federal judges, and in particular the Supreme Court). That shift bodes ill for both effective public policy and a logical division of powers.
The court is demoting everyone else—engineers; scientists; economists; Congress; and, ultimately, the general public—out of previously shared space for policymaking.
It’s worth illustrating this cautionary tale with a more in-depth (even if so far hypothetical) example. This year, EPA issued new greenhouse gas rules for light-duty vehicles (cars, SUVs, and small pickup trucks). The rule requires new vehicles to have lower average emission rates of greenhouse gases, accomplished either by increasing the fuel economy of gasoline cars or by increasing the share of zero-emission cars—mostly electric vehicles (EVs)—that manufacturers produce each year. The rule doesn’t explicitly require any level of EV market share, but EPA does anticipate that the rule will lead to more EVs—an increase of somewhere between 9 and 14 percentage points relative to a baseline case without the rule.
The rule is a big deal, going a long way to achieving the Biden administration’s economy-wide goals for greenhouse gas emissions and spurring automakers to invest billions of dollars in new technology. And EPA’s legal authority to set this kind of national standard is well established. Section 202 of the Clean Air Act directs EPA to set “standards applicable to the emission of any air pollutant from … new motor vehicles … which in [the agency’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.’’ That’s pretty broad and pretty clear authority, as federal regulatory statutes go, and EPA and the Department of Transportation have used this provision to set fuel economy standards for decades.
But the anti-administrative turn in the Supreme Court may allow these agency powers to be curtailed significantly. Opponents of the vehicle rule (who already have challenged it in court) claim that EPA is empowered to require only that pollution-producing internal-combustion vehicles get cleaner—not to push EV adoption. As industry lawyer Jeffrey Holmstead put it recently, “The question is going to be, ‘Did Congress clearly intend to give EPA authority to force a fundamental shift in the transportation sector?’”
The legal problem, under this view, isn’t that EPA’s rules are too strict; rather, the agency can’t require manufacturers to meet standards for greenhouse gas emissions mainly by selling more EVs. What this argument ignores is that whether the standards dramatically (i.e., fundamentally) increase EV sales isn’t a legal question—it’s actually an engineering and economics question. How will the costs of producing EVs compare with the costs of making gasoline vehicles more efficient? How readily will consumers buy EVs? And what constitutes a “fundamental” shift in the marketplace such that the consideration becomes a “major question”? Is a 9–14 percent change in EV market share big or small? These aren’t questions that judges are at all equipped to answer.
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This debate may sound familiar. Almost identical arguments were made against the Clean Power Plan, whose targets for emissions reductions for power plants were based on EPA assumptions that US states would shift away from coal and toward natural gas and renewable energy resources. The Supreme Court rejected exactly this kind of generation-shifting in West Virginia v. EPA, deeming it a “major question” over which Congress must clearly delegate authority to agencies.
EPA’s authority to regulate cars is on firmer legal ground than its authority to regulate greenhouse gas emissions from existing power plants, but will that authority be strong enough to withstand a Supreme Court empowered by Loper Bright to ignore agency interpretations of law, science, economics, and the West Virginia decision to demand extreme clarity from Congress for major questions? There’s no way to be sure, but a fundamental change in EPA’s authority to regulate vehicles is plausible now in a way that it has never been before.
EPA goes to great lengths in its vehicle rule to claim broad legal authority, and to downplay the degree to which the rule pushes EV adoption, anticipating the kind of challenge described above. Those efforts show the degree to which the court’s judicial aggrandizement empowers lawyers over other experts even within agencies, potentially leading to worse outcomes for the public. In the future, agencies may issue weaker rules—if the agencies regulate at all. Now that the vehicle rule has been finalized and challenged in court, judges alone will decide its fate. Agencies have substantially less discretion than they did before, and the limits of that discretion are decided exclusively by lawyers.
The court’s decisions claim to be grounded in the separation of powers, protecting Congress and the general public from imperial and unaccountable agencies and “expert” bureaucrats. The court, in short, tells agencies (and everyone else) to stay out of the legal lane. But in reality, the court is demoting everyone else—engineers; scientists; economists; Congress; and, ultimately, the general public—out of previously shared space for policymaking. That type of exclusion could compromise effective policy, good government, and a logical division of powers.
And the problem isn’t just one decision—Chevron was important, but the power balance between courts and agencies and their experts was reasonable before 1984, certainly more so than now. Instead, the suite of decisions (Loper Bright only one of them), and the thread of aggressive anti-administrativism that runs through those decisions, that has upset the balance.
The result of this shift in legal doctrine is a profound concentration of power in one discipline (the law) and one small group of people (federal judges, and in particular the Supreme Court). That shift bodes ill for both effective public policy and a logical division of powers.
What can resolve these problems? Many, including President Joe Biden, have suggested Supreme Court reform. This solution is a larger topic that we will not go into here, other than to note that the Loper Bright and West Virginia cases are illustrations of the judicial aggrandizement that inspires many reformers.
Focusing on the specific question of maintaining a balance of judicial and administrative powers, a few options exist. First, Congress can reduce ambiguity in its laws. A pessimistic perspective would acknowledge that ambiguity helps useful bills pass even when legislators disagree on the details. Extreme partisanship and a proliferation of veto points already make it hard for Congress to act. What seems likely is that only large, single-party majorities in both the Senate and House could permit more specific language. But even in the case of a large majority, to reduce statutory ambiguity, Congress would need to obtain the scientific expertise that agencies already have.
Second, Congress could react by passing legislation that requires Chevron-style deference to agencies by courts, and that rejects the major questions doctrine. This kind of legislation seems even less likely to pass, and such a law might be rejected by the Supreme Court on constitutional grounds, anyway.
Third, perhaps the courts will find it necessary to rely on technical and scientific expertise, from agencies or elsewhere. Some legal scholars suggest that “deference is inevitable”: judges may loudly claim exclusive domain, especially in high-profile cases, but in most cases, they will come to admit that they don’t have all the answers. Having different rules based on how much the judge cares about the outcome of a case is hardly good for the rule of law, but perhaps is better than the juristocracy that’s promised by the Supreme Court’s recent decisions.
