PRESS RELEASE: By Overruling Chevron and Restraining Agency Discretion, Supreme Court Respects Separation of Powers

Regarding the Supreme Court’s decision today in LOPER BRIGHT ENTERPRISES v. RAIMONDO, Free State Foundation President Randolph May issued the following statement:

“The Supreme Court’s decision in Loper formally burying the Chevron doctrine is overdue but still important, even though the Court itself has not cited Chevron since 2016. In ignoring the Administrative Procedure Act’s injunction that courts reviewing agency decisions should decide 'all relevant questions of law,' Chevron allowed agencies to expand their power beyond Congress’s intent by deferring to bureaucrats’ interpretation of supposedly ambiguous statutes. And by requiring deference to agencies’ statutory interpretations, the Chevron doctrine was inconsistent with the separation of powers fundamental to our constitutional scheme. As Chief Justice Marshall declared in Marbury v. Madison, it is 'emphatically the province and duty of the judicial department to say what the law is.'

It is important to understand, as the Court emphasized, that Chevron’s demise does not mean that courts will no longer accord deference to agency interpretation of statutes based on factors like their consistency with prior decisions, the pertinence the agency’s particular expertise, and the persuasiveness of the agency’s reasoning. But the courts won’t accord the agency interpretations the controlling weight that Chevron required.

The practical effect of the Supreme Court’s decision in Loper should be to rein in overly aggressive statutory interpretations by agencies, including for example the FCC, FTC, and SEC, that unjustifiably expand bureaucrats’ power in the administrative state. With Chevron buried, and the Major Questions Doctrine now embedded in its jurisprudence, the Court has taken important steps to restore the proper relations among Congress, the executive branch and so-called independent agencies, and the courts closer to the Founders’ constitutional separation of powers vision.”

PS — For an extensive legal discussion predicting Chevron’s demise and explaining the Major Questions Doctrine, see Randolph May and Andrew Magloughlin, NFIB v. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show (February 10, 2023). South Carolina Law Review, Vol. 74, No. 2, 2023, Available at SSRN: https://ssrn.com/abstract=4354143  and here: https://freestatefoundation.org/wp-content/uploads/2023/02/2.-May-Magloughlin-NFIB-v.-OSHA-FINAL.pdf