Will Confirming Judge Barrett be the Death of Chevron Deference?
This post was originally published on the Union of Concerned Scientists' blog. Reprinted with permission.
For many of us, the prospect of a Supreme Court with Judge Amy Coney Barrett giving conservatives a solid 6-3 supermajority is nightmare fuel. The consequences extend beyond hot-button social issues, such as women's reproductive rights or individual access to affordable health care. If confirmed, Barrett would likely spur the aggressive pro-business agenda that the Court has pursued under the auspices of Chief Justice John Roberts.
A key item on that agenda is overturning something called Chevron deference, which some business groups have made a top priority in their broader campaign to bring about, as former White House Chief Strategist Steve Bannon put it, the "deconstruction of the administrative state." In other words, changing this key doctrine would undermine the ability of Executive branch agencies to regulate on a huge range of public health, safety and environmental protection issues.
Chevron deference springs from a 1984 Supreme Court case called Chevron v. NRDC, which involved a legal challenge against a Clean Air Act rule issued by the U.S. Environmental Protection Agency (EPA). Specifically, the lawsuit claimed that the rule was based on an incorrect …
Originally published on Legal Planet. Reprinted with permission.
The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.
That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought and what kind of remedies they can provide. For instance, it states that issuance or refusal to issue an impact statement does not trigger the right to go to court, that no claim can ever be raised in court unless it was first raised by the agency, and that lawsuits must be always be brought quickly. Some of these might be right, some might not be …
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission.
Until recently, you could be a very well-informed American – a lawyer, even – without ever having heard of the Chevron doctrine. That has changed enough that last month, The New Yorker had a "Talk of the Town" essay discussing Kavanaugh's views of the Chevron doctrine. The reason for the attention to Chevron is ultimately congressional deadlock, which means that the only viable path for big changes in policy is through the administrative process. That's how Obama created DACA and the Clean Power Plan; it's how Trump is trying to roll back Obama's achievements.
The Chevron doctrine is a key part of the way courts review these administrative actions because it gives agencies leeway in interpreting the statutes that authorize administrative action. This doctrine is largely a …
Cross-posted from LegalPlanet.
In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court's current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like EPA and the SEC. That could be important as Trump's deregulatory actions start hitting the judicial docket. Thus, in the short-run, limiting Chevron could help check an out-of-control presidency. In the long run, however, it could also hinder progressive regulatory efforts.
As my wife reminds me from time to time, not everyone in the world spends their time on administrative law. So, before I get to that, I'll start with a quick review of the Chevron doctrine, partly drawn from earlier posts. If you don't need that, just skip …
Originally posted at Notice & Comment, a blog of the Yale Journal on Regulation and the American Bar Association Section of Administrative Law & Regulatory Practice, as part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. Reprinted with permission.
The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily both Chevron, USA, Inc. v. NRDC and Auer v. Robbins (and its forebear Bowles v. Seminole Rock & Sand Co.), but not Skidmore v. Swift & Co.
The idea is not new. Indeed, beginning in 1975, well before Chevron began its …
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