Budd, Bishop back Supreme Court brief bashing ‘Chevron deference’ | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Two members of North Carolina's congressional delegation have signed onto a US Supreme Court brief opposing so-called "Chevron deference." That's a legal doctrine that compels judges to defer to government administrative agencies' interpretations of federal laws.

    US Sen. Ted Cruz of Texas and Rep. Mike Johnson of Louisiana filed the July 24 friend-of-the-court brief in the case Loper Bright Enterprises v. Raimondo. Among the 34 congressional co-signers are North Carolina's Sen. Ted Budd and Rep. Dan Bishop. All are Republicans.

    "The Court should unequivocally abandon the contemporary Chevron deference doctrine because it contradicts Articles I, II, and III of the Constitution," according to the brief. "Decades of application of Chevron deference have facilitated the exercise of functions by the executive branch that more properly belong to the legislative and judicial branches."

    "Agencies exploit general or broad terms in statutes to engage in policymaking functions of questionable legality with the assumption that courts will grant deference and not independently evaluate the lawfulness of those agency interpretations," the members of Congress argued.


    "The 'Founders expected that the Federal Government's powers would remain separated - and the people's liberty secure - only if the branches could check each other.' Therefore, '[t]he Constitution carefully imposes structural constraints on all three branches,' and 'the exercise of power free of those accompanying restraints subverts the design of the Constitution's ratifiers,'" the brief continued.

    "Chevron deference effectuates such subversion by relieving legislators of significant aspects of their duty to legislate and judges of their duty to fully adjudicate questions of law," the members of Congress argued. "Consequently, agencies themselves are engaged in legal determinations without being fully subject to review or accountability, embodying Montesquieu's cautionary description that '[w]hen the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.'"

    "Not only does the modern framework of Chevron deference offend the fabric of the Constitution, it also contradicts the Administrative Procedure Act," the brief argued. "Section 706 of the Act provides that courts are obliged to decide all questions of law including statutory interpretation when reviewing agency action for lawfulness."

    "The Court should end this 'atextual invention.' Chevron deference is eminently worthy of abandonment. It has led to increasingly chaotic shifts in administrative regulations that affect millions of Americans, and it puts a thumb strongly on the scale in favor of the executive branch when its actions are challenged in court," members of Congress argued. "Eliminating Chevron deference would have a significant stabilizing effect on the law, as courts would once again become the independent arbiters of the statutory boundaries of agency discretion, and executive agencies would have to comply with those interpretations, rather than enjoying an incentive to issue drastically different regulations each time the political winds change."

    "Jettisoning Chevron deference would therefore restore not just critical constitutional separation of powers principles but also favor the citizenry themselves, who have often suffered harms because of the lack of full representative democratic accountability that Chevron enables," according to the brief.

    Chevron deference stems from the 1984 US Supreme Court decision in Chevron USA v. Natural Resources Defense Council.

    The US Supreme Court agreed this spring to hear the Loper Bright Enterprises case. Justices will hear oral arguments in the next court term that begins in October.


    In the Loper case, commercial fishing companies challenged a National Marine Fisheries Service rule. It "requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans," according to a summary at SCOTUSblog.com. A split federal Appeals Court panel relied on Chevron deference to reject the fishing companies' case.