On the one hand, there’s little doubt that the running of such a diverse and complex society as ours requires a substantial bureaucracy to make it work. On the other hand, the administrative state today is not the administrative state it was 20 years ago, and certainly not what it was in 1984, when the Supreme Court created Chevron Deference.

Our Chevron doctrine requires courts to use a two-step framework to interpret statutes administered by federal agencies. After determining that a case satisfies the various  preconditions we have set for Chevron to apply, a reviewing court must first assess “whether  Congress has directly spoken to the precise question at issue.” If, and only if, congressional intent is “clear,” that is the end of the inquiry. Ibid. But if the court determines that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court must, at Chevron’s second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.”

The notion was that Congress would craft vague and broad enabling legislation with a salutary goal in mind, and then pass it off to an Executive Branch administrative agency to be managed by bureaucrats who would be chosen for expertise in whatever specific field the agency addressed to do the nuts and bolts work of making Congress’ deliberately vague mandate come to life. There were two key aspects to the concept that, when Chevron was decided, were relatively uncontroversial.

First, agencies took their mandate to staff with qualified people, “experts” to a fairly decent extent as today’s hysterics decry, seriously. Second, agencies had humility, the modesty to appreciate that they were not Congress and existed to serve the limited purpose and exercise the limited authority Congress imposed on them. Congress gave them a purpose and they sought to fulfill that purpose, but not abuse their authority by straying beyond it. Even Scalia opined that it “accurately reflects the reality of government, and thus more adequately
serves [government’s] needs.”

But times change, and people, being what they are, saw the opportunity to take use Chevron Deference for their own purposes. Beyond Pournelle’s iron law of bureaucracy, industry used the opportunity to “capture” government agencies by either using its people to staff them or using the agency’s people to staff industry, shifting the agency’s goal from serving Congress to serving industry.

Then there was the “expertise” problem, where second-rate bureaucrats had the power of “experts” but not the knowledge and skills of real experts. Government didn’t pay as well as private industry, and once employed, little was demanded of agency staffers of dubious qualifications, who could use bureaucratic fiat to dictate to far more qualified experts. Bureaucrats could smugly sniff yes or no, and there was essentially nothing to be done about it.

But worst of all, idealogues came to realize that by taking the lower paying, lesser demanding, government jobs, they could seize power in a regulatory realm and twist it to their will. One of the most glaring examples is Title IX, where Catherine Lhamon manipulated a mandate to prevent discrimination on the basis of sex in education to create a sexual misconduct inquisition against male students and eradicate the distinction between male and female. Nowhere did Title IX suggest any such thing, and yet Lhamon, through administrative fiat, abused her authority to reinvent the campus to suit her ideological vision.

In Loper Bright Entreprises v. Raimondo, by a 6-3 decision along party lines, the Supreme Court overruled Chevron. On the left, this was met with hysteria and outrage, the conservative justices eschewing expertise and undermining the regulatory state that saved our air and water so that industry can go back to destroying our planet for profit.

It does not, however, serve the needs of America’s business community, which looks at the slew of federal regulations and sees only reduced profits. Deep-pocketed businesses have been the staunchest opponents of the doctrine; along with a raft of committed right-wing activists, they finally managed to get enough like-minded friends on the Supreme Court to kill it off.

But as Chief Justice John Roberts made clear, courts should still show respect to agency determinations, recognizing expertise where it deserved to be recognized. And as Justice Elena Kagan made clear in her dissent, the end of Chevron Deference didn’t mean Skidmore Deference disappeared.

[T]he majority makes clear that what is usually called Skidmore deference continues to apply. Under that decision, agency interpretations “constitute a body of experience and informed judgment” that may be “entitled to respect.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).

What the Court did was shift the final decision on the scope of an agency’s reach where the enabling law was either vague or silent from the agency, which tended to be ever-expanding to grab greater turf within its control, to the courts to decide whether the agency’s authority-grab was an abuse of the authority given it be Congress.

An immediate grievance about Loper Bright was that it would put harsh demands on Congress to write far more extensive and precise laws, making that far longer to cover unforeseen eventuality that agencies had previous dealt with on their own. Whether this was a bad thing, mandating that Congress work a lot hard than write a law saying “Agency X should do good” and leaving it to the agency to decide what that meant, is one question.

But another is whether it’s an accurate complaint. Where enabling legislation is ambiguous or silent, agencies will still be left to decide what the scope of their authority should be. And nothing in Loper Bright precludes a court from deferring to the agency when its determination is sound and reasonable. What it precludes is the mandate courts do so under Chevron Deference.

For many lawyers of a certain age, our appreciation of Chevron Deference waned as agency expertise and modesty gave way to bureaucratic power plays and ideological abuse. Chevron Deference played an important role in the functioning of our complex nation. But as Jerry Pournelle predicted, it would eventually forget its limited purpose and serve only to perpetuate the power of the bureaucracy. It was time for Chevron Deference to go.