also be on the lookout for the Chevron case in this upcoming year. The fun begins the first Monday in October.

Quote:...Now the Supreme Court has taken Loper Bright’s case to consider whether Chevron should be overruled. And Cato, joined by the Committee for Justice, has filed an amicus brief supporting Loper Bright and urging the court to overrule Chevron.

Chevron sets out a two‐step process that courts must follow when reviewing an agency’s interpretation of a statute. First, the court must apply the traditional tools of statutory interpretation and determine if the statute has a clear meaning. If the statute is clear, then the court must apply that clear meaning. So far so good. If, however, the statute is “ambiguous,” the court must move to the next step and defer to the agency’s interpretation so long as it is “reasonable.” The court must defer to an agency’s reasonable interpretation even if the court believes that the agency’s interpretation is not the best interpretation.

Chevron thus gives judicial power — the power to interpret the meaning of the law — to the executive branch. The Constitution, however, grants all judicial power to the judicial branch. And Chevron deference applies even when the agency demanding deference is also a party to the case. Chevron thus biases the courts toward government agencies, stripping the judiciary of impartiality and denying litigants basic due process.

In addition to these fundamental problems, our brief gives two further reasons why Chevron must be overruled: it is ahistorical and unworkable. Chevron is ahistorical because courts did not reflexively defer to the executive at the time of the Constitution’s framing or for a hundred years after. The nineteenth‐century precedents that some have cited to support Chevron were all fundamentally different, such as when courts gave interpretive weight to long‐held or contemporaneous executive interpretations. It was not until the New Deal era that the Supreme Court began to defer to the executive solely because it was the executive. And it was not until Chevron that deference to the executive became a binding rule for all federal courts.

Further, Chevron is unworkable because courts have failed to find a consistent definition of “ambiguous.” The Supreme Court itself has gone back and forth, sometimes applying all the tools of statutory construction rigorously at the first Chevron step and other times quickly deferring with little statutory analysis. Even as the Supreme Court has declined to defer over the last seven years, lower appellate courts have continued to find statutes ambiguous more than half the time. The failure to reach a consensus on the meaning of “ambiguous” itself demonstrates that Chevron is arbitrary and unworkable.

Loper Bright’s case exemplifies everything wrong with Chevron. The court now has a perfect opportunity to overrule Chevron and reclaim the judiciary’s independence.

aka


LOPER BRIGHT ENTERPRISES, ET AL., Petitioners,
v.
GINA RAIMONDO, in her official capacity as Secretary of Commerce, ET AL., Respondents