What Was Chevron Deference? (2023)

No, it did't. The regulations were approved in 1953 and upheld in 1976 ( https://supreme.justia.com/cases/federal/us/428/543/ ), before the Chevron deference.

> Chevron is an American tragedy. It's fixed and should be fixed forever.

Chevron deference is the reason the US works at all. Without it, we'll get back into a morass of endless lawsuits that stop any improvement.

> When Chevron as active you could not challenge the US constitution not applying to border patrol because of Chevron. This is literally the CPBs only line of defense.

Specifically that Chevron enables this - I don't see how Chevron applies here.

That's not what the source you give says. It says the Fourth Amendment's prohibitions on searches and seizures do not fully apply at the borders. And even that is a questionable description of the actual state of the law. The Fourth Amendment prohibits "unreasonable" searches and seizures; the actual state of the law is that searches and seizures at the border for the purpose of preventing contraband from entering the country are not considered unreasonable, so the Fourth Amendment does not prohibit them.

And, as another response to you pointed out, all this was the state of the law before the Chevron case even began, so whatever issues you might have with it cannot be due to Chevron deference. Indeed, much of the state of the law is due to court rulings, not agency findings, so Chevron would not apply to it even if it had been decided earlier.

I haven't heard anything from CBP, so we can all guess your "fact" is disingenuous...

(And if it were really the case, how long before it is even more enshrined in law?)

The end goal is to make sure all federal regulations come from Congress, which limits what regulations can be made because the Republicans will just say no to everything.

My question is whether we will see the inverse happening: people suing local companies and winning lawsuits forcing the corpos to follow the law rather than relying on government agencies to do it on the public’s behalf.

EDIT: On desktop, pasting in from the dissent:

(Kagan's words) Consider a few examples from the caselaw. They will help show what a typical Chevron question looks like—or really, what a typical Chevron question is. Because when choosing whether to send some class of questions mainly to a court, or mainly to an agency, abstract analysis can only go so far; indeed, it may obscure what matters most. So I begin with the concrete:

- Under the Public Health Service Act, the Food and Drug Administration (FDA) regulates “biological product[s],” including “protein[s].” 42 U. S. C. §262(i)(1). When does an alpha amino acid polymer qualify as such a “protein”? Must it have a specific, defined sequence of amino acids? See Teva Pharmaceuticals USA, Inc. v. FDA, 514 F. Supp. 3d 66, 79–80, 93–106 (DC 2020).

- Under the Endangered Species Act, the Fish and Wild- life Service must designate endangered “vertebrate fish or wildlife” species, including “distinct population seg- ment[s]” of those species. 16 U. S. C. §1532(16); see §1533. What makes one population segment “distinct” from another? Must the Service treat the Washington State population of western gray squirrels as “distinct” because it is geographically separated from other western gray squirrels? Or can the Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest? See Northwest Ecosystem Alliance v. United States Fish and Wildlife Serv., 475 F. 3d 1136, 1140–1145, 1149 (CA9 2007).

- Under the Medicare program, reimbursements to hospitals are adjusted to reflect “differences in hospital wage levels” across “geographic area[s].” 42 U. S. C. §1395ww(d)(3)(E)(i). How should the Department of Health and Human Services measure a “geographic area”? By city? By county? By metropolitan area? See Bellevue Hospital Center v. Leavitt, 443 F. 3d 163, 174– 176 (CA2 2006).

- Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park—specifically, to “provide for substantial restoration of the natural quiet.” §3(b)(1), 101 Stat. 676; see §3(b)(2). How much noise is consistent with “the natural quiet”? And how much of the park, for how many hours a day, must be that quiet for the “substantial restoration” requirement to be met? See Grand Canyon Air Tour Coalition v. FAA, 154 F. 3d 455, 466–467, 474–475 (CADC 1998).

Lawsuits are costly in time and money: on balance one would expect more lawsuits as the judiciary becomes more powerful, and fewer the easier it becomes to predict how judges will rule. Which tendency is stronger remains to be seen.

That said getting rid of the Chevron defense and a lot of other rulings from the court have been both very activist, very harmful, and badly argued.

So, one of the big problems with chevron deference is that when the laws says XYZ to be determined by agency ABC and agency ABC determines Q, but an election happens, the president gets up and makes a big populist speech, issues an executive order and now agency ABC determines R instead. This is a problem because under chevron + APA, the agency determination of both Q and R which may be contradictory both have the force of law and the courts were bound to simply defer to the interpretation.

You have agency making rules which have the force of law but the "law" is changing without the authorizing statute having changed and the courts' hands were tied by chevron. This is especially problematic when the rulemaking has associated criminal penalties.

Now, just because chevron deference no longer exists doesn't mean that agencies cannot make rules, but it does mean that if an agency makes a wild swing in rulemaking without a change in the underlying statute then its much easier to challenge that action. Ultimately, we want these things in the hands of the representative branch of the legislature anyway. One can dream anyway...

The Clean Air Act (CAA) of 1963 requires the EPA to set emission standards for "any air pollutant" from motor vehicles or motor vehicle engines "which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare."

The main question of that case was whether CO2 and other greenhouse gases are an "air pollutant" that causes "air pollution". Unsurprisingly, the CAA didn't specify each and every "air pollutant", rather Congress implicitly left it to the EPA.

So the problem was not whether Congress had explicitly delegated regulation to an administrative agency but whether the EPA was required by statute to regulate CO2 and other greenhouse gases.

Going forward, deference to the administrative agency is not required. The judiciary can certainly still side with an administrative agency. However, the courts will have to play a larger role in addressing technical statutory questions. The courts have always been able to disregard agency expertise (as SCOTUS just did), this just signals a greater willingness to do so.

Like any other law, they rule it as unconstitutional. Appeal its way up to the SCOTUS, and they will ultimately decide if they want to keep the power or give it back to the regulatory agencies.

No way you’re getting a with-teeth EPA law, for example, through a modern Congress until we’re back to smog clouds over our cities and burning rivers and creating new, large cancer districts and superfund sites. And that’ll have to go on for a while before it happens. Then, maybe.

We’ve been coasting on good laws from the 70s and earlier, mostly, while weakening regulation has been eating our foundation like termites (especially Chicago-school-driven judicial rulings on how the executive is allowed to enforce anti-trust, in the late 70s, and later removal of media ownership consolidation rules). Now they (people who wish they could hurt people while making money and not be told to stop) can attack those good laws directly.

Their constitutional role is quite a lot more limited than their de facto role.

Congress may ultimately decide to assert their dominance, which sounds good, except that Congress is already fully captured by special interests anyway.

This ruling is the thing that is the poison to our nation. It is born not only of extreme conservativism but also nihlism that doesn't care how many things are wrecked if there's less regulation for big businesses. It is extremely cynical ruling that has little relationship to the constitution. Congress has been broken at least since the 90s(thanks Gingrich) and the Chevron defense has helped keep the country working

This makes us great at redressing harm, and terrible at preventing harm. A lot of modern technology is such an effective force multiplier that the process of establishing standing and having a hearing before a preliminary injunction can be catastrophic, far beyond what was possible when the Constitution was drafted.

Under Chevron, judges deferred to reasonable regulatory interpretations. Now it's a slower, more adversarial process.

I hope you're right and the answer is to just grow the government and judiciary.

1. Is it vague about legal matters? For example, does the law seem to allow government agents to search somebody's house without good cause or notice? Then the judge, being an expert in law, should make the call.

2. If not 1, then it seems to be a subject matter vagary. For example (pulling from the dissent), is the Gray Squirrel population in the Pacific Northwest distinct enough from other Gray Squirrel populations in the US to qualify for protection? Should this be determined by geography, genetics, ecosystem similarity? How could we expect a judge to wisely rule on this unless they also have an advanced degree in biology and ecology?

Chevron recognized that matters of law should be decided by judges, but also accepts that we don't have idealized judges who always have perfect understanding. I expect we'll soon see glaring examples of imperfect (a.k.a., human) judges soon.

I suppose one could say, "Just read the text! Congress shall make no law..."

But I think even the strictest originalist would concur that the Framers understood there would be times when Constitutional absolutes would come into conflict and reasonable judgments made, by the Executive, Congress, or the Court.

If you take Chevron seriously, the fact of whether or not Congress in 1934 wrote a law that required modern ISPs to be regulated as common carriers under Title II of the Communications Act actually changed as the FCC ping-ponged between Republican and Democratic control over the past 10 years.

If you're a judge who thinks the law should carry forward consistently the same meaning it had when it was passed, difficult ambiguities and all, that's a pretty bad bug: Now the meaning of a law to the people of the United States isn't fixed at all, it can change (and change back) at the will of the President, without Congress amending it.

Most politicians are not extremists who would rather see the US become a failed state than cooperate with their political opponents. It would be like a (mentally healthy) married couple choosing homelessness because they disagree over what color the walls should be.

The other half is that enlightened people that don't value democracy and think they represent the "greater good" want the power to circumvent such archaic processes like "passing laws".

Chevron Deference would have continued but the government simply couldn't help themselves.