Georgia Gov. Urges SCOTUS to 'Overturn' Chevron for ‘Multitude of Reasons'

Georgia Gov. Brian Kemp (R) urged the U.S. Supreme Court to “overturn” Chevron, or at least clarify that statutory silence doesn’t create “an ambiguity triggering Chevron deference,” in his amicus brief Monday (docket 22-451) supporting the petitioners in Loper Bright Enterprises v. Raimondo. The docket shows 46 amicus briefs were filed through Monday since the petitioners filed their opening brief July 17 (see 2307180033), including 31 briefs filed Monday alone.

As Georgia governor, Kemp “knows the damage federal regulations can have when federal agencies extend their regulatory purview through self-serving statutory interpretations,” said his brief. He also knows “the difficulty of enacting statewide, comprehensive policy measures in the face of unpredictable intrusion by federal agencies into areas traditionally reserved for state power,” it said. Chevron should be overturned “for a multitude of reasons,” it said.

One reason, “sufficient on its own,” is Chevron’s “propensity to deny judicial remedy to agency interpretations that upset traditional federalism principles,” said Kemp’s brief. Any action SCOTUS takes on Loper Bright “should be evaluated against the backdrop of the looming questions over the proper extent of federal authority into areas traditionally reserved” to the states, it said.

A “fundamental question” about the nature of the federal system and the “proper division of power” between the states and the federal government “looms on the horizon,” said Kemp’s brief. Recent SCOTUS decisions “bring this conflict closer to the forefront and place limits on Congress’s ability to interfere directly with traditional state concerns,” it said. Overruling Chevron in Loper Bright “will move this critical debate to the forefront,” it said. The Chevron analysis focuses on what Congress intended to do, attempting to “discern” congressional intent “from silent or ambiguous statutes,” it said.

Focusing on whether Congress intended to delegate interpretative powers to federal agencies “obfuscates scrutiny of the underlying exercise of power,” said Kemp’s brief. SCOTUS should overrule Chevron “and require Congress to clearly call for agency actions that alter the federal-state balance,” it said: “Requiring a clear statement in all circumstances -- not just the most extreme cases -- brings the fundamental question of what Congress can do to the forefront.”

The doctrine may have seemed like a “pragmatic standard” when Chevron was decided in 1984, said Kemp’s brief. But the decision, as applied in the decades since, has “fundamentally altered Americans' relationship” with the federal government, it said. By “insulating” a federal agency’s interpretation of its “enabling statute,” Chevron “and its progeny stand in stark contrast to the traditional notions of federalism that underpin the Constitution,” it said.

The doctrine’s presumption that Congress may implicitly delegate legislative power to federal agencies, including the power to preempt state policies, undermines the Supreme Court’s “longstanding requirement that when Congress intrudes into the traditional domain” of the states, “it must do so explicitly,” said Kemp’s brief. Even when federal agencies don’t directly preempt state policies, “every federal agency regulation constrains state action,” it said. Regulations have ancillary effects, “often leading to unintended and negative consequences not contemplated by federal agencies,” it said. Unlike with congressional action, states and their citizens “lack direct political representation in the regulatory process to ensure their interests are protected,” it said.

Eliminating the doctrine “may seem like a daunting proposition,” said Kemp’s brief. “If there is no Chevron deference, what remains?” it asks. Chevron “has stood as a proxy for federal regulation as a whole,” it said. Chevron’s proponents “may analogize it to the keystone in an arch,” reasoning that without Chevron, “surely the system as a whole would descend into chaos,” it said. “Yet the history of administrative deference at the state level would suggest this parade of horribles is, at worst, a remote possibility,” it said.