States That Reject Versions of Chevron Are ‘Better Governed,’ Says Goldwater Institute

Individual states that “abandoned” their own versions of Chevron deference haven’t suffered “negative consequences” as a result, said the Goldwater Institute (GI) in a U.S. Supreme Court amicus brief Tuesday (docket 22-451) in support of the petitioners in Loper Bright Enterprises v. Raimondo.

The petitioners are commercial fishing companies urging SCOTUS to “jettison” the Chevron doctrine (see 2307180033). They’re challenging a federal rule requiring them to pay the salaries of onboard observers.

Among the many states that have their own versions of Chevron deference, just as that doctrine led to “unwarrantable expansions of agency power” at the federal level, “so it has also caused problems at the state level,” said GI’s brief. Many states abandoned their versions of Chevron deference in recent years, “either by court ruling or statute,” and they experienced “no untoward consequences” as a result, it said.

On the contrary, the state rejections of Chevron-like deference enabled courts to “better perform their job of saying what the law is,” and ensured “better accountability with respect to bureaucracies without obstructing legitimate regulation,” said GI’s brief. Chevron is “unnecessary” and “unwarranted,” it said. The doctrine is “incompatible with our constitutional design and leads to intractable problems such as regulatory capture and rent-seeking,” it said.

There’s “no evidence” states that abandoned their versions of Chevron deference “suffered as a consequence,” said GI’s brief. “Their people are not less safe or less prosperous; nor are their agencies unable to protect public safety,” it said. There’s “good reason” to think the people in those states “are better governed than in states that practice broad deference, such as California,” it said.

Michigan refused to adopt Chevron deference in 2008, finding it very difficult to apply, and incompatible with separation of powers principles, said GI’s brief. “Not only is there no evidence that this has harmed the state, but there’s reason to believe it has helped,” it said. During the COVID-19 pandemic, Michigan Gov. Gretchen Whitmer (D) “asserted an extremely broad theory of executive power,” it said. She required employers to do daily health screenings of employees, imposed strict masking mandates, closed restaurants and bars, and even prohibited boating and golfing, it said.

When those actions were challenged as exceeding the governor’s statutory powers, the court used non-deferential, de novo review to find her actions were “invalid,” said GI’s brief. “Yet there’s no reason to believe the court’s vigilance hampered the state’s ability to respond to the pandemic,” it said. States, by contrast, that practice “extensive deference” have experienced “absurd” rulings, such as the “now infamous” California decision upholding an agency determination that bumblebees are fish, it said.

The experience of states that rejected Chevron theory as a state-law matter “shows why judicial independence is a better path,” said GI’s brief. “It prevents undemocratic and unpredictable expansions of government authority while still leaving government capable of protecting public health and safety,” it said.

Deference to agencies “has neither historical nor conceptual justification,” said GI’s brief. Once an executive-branch agency enforces a statute, then citizens “will have an opportunity for judicial review, which is all the Constitution requires,” it said.

Unfortunately, that model “hardly resembles the reality of today’s pervasive regulatory state,” said GI’s brief. What really happens is that Congress adopts broadly worded legislation forbidding some vaguely described harm, “and leaves it to agencies to define these terms and, thereby specify the nature of the offense,” it said. The agency’s regulations “bind the citizen,” it said. They specify prohibited behavior, “and are typically wedded to administrative adjudication and administrative penalties,” it said.

But when enforcement occurs and citizens seek judicial review, they discover “it’s effectively too late” because the court defers to what the executive branch decided before enforcement occurred, said GI’s brief. “All of this is done under the aegis of the statute, but in substance what has happened is a delegation of lawmaking power to the enforcer,” it said.