Campaign to Undo Chevron Is 'Special Interest Solution' in Search of Problem: Dem Senators

Four Democratic senators support keeping Chevron against the “decades-long effort by pro-corporate interests to eviscerate the federal government’s regulatory apparatus to the detriment of the American people,” said their U.S. Supreme Court amicus brief Thursday (docket 22-451) in support of the government respondents in Loper Bright Enterprises v. Raimondo (see 2309170001). “The call here to overturn Chevron and dismantle agency powers is a special interest solution in search of a problem,” said Sens. Sheldon Whitehouse of Rhode Island, Mazie Hirono of Hawaii, Dianne Feinstein of California and Elizabeth Warren of Massachusetts.

As industries grew more complex over the past 100 years, Congress “delegated some regulatory authority to administrative agencies,” said the senators’ brief. Chevron deference “has been an important element in this endeavor, allowing Congress to rely on agency capacity and subject-matter expertise to help carry out Congress’s broad policy objectives,” it said. Administrative regulations “reined in dangerous industry activities, and our society became safer and more prosperous,” it said.

Special interests “strategically file lawsuits challenging administrative rules and regulations, with coordinated mass filings of amicus curiae briefs, to convince courts to chip away at administrative agencies’ regulatory authority,” said the brief. Corporate interests “funnel billions of dollars into think tanks, advocacy organizations, political elections, and judicial confirmations,” it said. “They generate false information, ingratiate themselves with elected officials, and steer jurisprudence toward their deregulation goals,” it said.

The purported problem the special interests seek to fix by dismantling Chevron “is actually a value for the general public,” said the brief. Regulations facilitated by Chevron deference “have improved the health, safety, and welfare of the American people,” it said.

The “industry-funded operation” to undo Chevron unfortunately “has been effective,” said the brief. In the 2022 Supreme Court decision in West Virginia v. EPA, the court significantly limited administrative agency authority by adopting a so-called “major questions” doctrine, it said. “This new addition in the law led to an onslaught of challenges to administrative regulatory authority, many still in litigation,” it said. Amid this “upheaval,” it would be “rash to further upend precedent” when the effects and understanding of the newly created “major questions” doctrine “are still developing,” it said.

Even if it were true that accountability in administrative agencies isn't adequate, “the answer to that is hardly to remove that authority to even-less-accountable courts, or to a Congress that would be so practically overwhelmed as to render accountability meaningless,” said the brief. Eliminating Chevron deference wouldn’t just conflict with Congress’ “well-established policymaking desires,” it said. It also would “erode the separation of powers” by shifting policymaking power from Congress and the executive branch to the “unaccountable judiciary,” it said.