Undoing Chevron Won’t Be ‘Cataclysmic,’ Say 5 Former State Supreme Court Justices

Many states that previously recognized state-law “analogs” to Chevron deference “have abolished those counterparts, either by statute or judicial decisions,” with no detriment, said five former state supreme court justices, a former state appeals court judge and the American Commitment Foundation in a U.S. Supreme Court amicus brief Monday (docket 22-1219). The brief was in support of the petitioners in Relentless v. Commerce Department that urge SCOTUS to do away with the Chevron doctrine.

The “clear trend” in the states toward Chevron-like deference “is one of elimination rather than entrenchment,” said the former jurists: Arizona Supreme Court Justice Andrew Gould, former North Carolina Supreme Court Chief Justices Mark Martin and Burley Mitchell, former Mississippi Supreme Court Chief Justice William Waller, former Michigan Supreme Court Justice Kurtis Wilder and former Arizona Court of Appeals Judge Philip Hall.

The amici jurists “have experience in their respective states of applying standards of non-deferential review of agency interpretations of state statutory law,” said the brief. As SCOTUS considers overturning Chevron at the federal level, amici “offer their unique perspective on how such an approach is both workable and preferable as evidenced by their experience as justices and judges in their respective state courts,” it said. Their experience bolsters the case “for adopting the same approach at the federal level,” it added.

Of two “overarching points” to be made, the first is that overruling Chevron won’t produce the “significant disruptions” that the government “and its alarmist amici postulate,” said the brief. “No such disruptions occurred” in the states that eliminated Chevron-like deference, it said. The second is that overruling Chevron “will restore the federal judiciary to its proper role of resolving what federal statutes mean,” it said.

Among the myriad benefits of “our federal system of dual sovereigns” is the opportunity for states to serve as the laboratories for devising solutions to difficult legal problems, said the amicus brief. A “corresponding” benefit is that the federal government, including the judiciary, can benefit from the lessons and experiences of the states’ “experimentation,” it said.

“So it is here,” said the brief. Many prognosticators have liberally predicted grave, “even cataclysmic,” consequences if SCOTUS overrules Chevron, said the brief. In their view, having federal courts determine what federal statutes mean “without agencies’ thumbs (and frequently anvils) on the scales” would usher in a new era marked by legal and administrative chaos, it said.

The experiences of the states that have abolished Chevron-like deference “refute these doom-and-gloom predictions,” said the brief. Those states haven’t encountered “such conjectured catastrophes,” it said. “Indeed, the putative disruptions are so minor and insignificant that they are often even difficult to detect,” it said. As an example, after Arizona abolished Chevron-like deference in 2018, the Arizona Supreme Court “has only even mentioned that elimination three times,” it said.

Though disruptions of any magnitude “were hard to discern,” the resulting benefits “were readily perceptible,” said the brief. Abolishing Chevron “analogs” at the state level “has spurred something of a judicial renaissance,” with state courts reclaiming their proper role of saying what the law is, it said: “The results have been overwhelmingly positive.”

That’s particularly so because Chevron and Chevron-like deference “rests on a deep anomaly that upends separate-of-powers principles,” said the brief. The core competency, and principal duty, of the federal judiciary “is to decide what the proper interpretation of federal law is,” it said. The founders “specifically created an independent judiciary with life tenure precisely so that legal disputes could be resolved by impartial, non-elected officials,” it said.