Loper Bright Enterprises v. Raimondo addresses the difficulty of killing regulations by handing the job over to judges. It invites the Supreme Court to reverse its 1984 ruling in Chevron USA v. Natural Resources Defense Council. That decision created what’s known as “Chevron deference,” which directs federal judges to give regulatory agencies broad latitude in interpreting their statutory instructions. In 1984, Chevron was judged to be a conservative ruling because it gave President Ronald Reagan’s Environmental Protection Agency greater latitude to subvert the intent of the Clean Air Act. In a 1989 law review article, Supreme Court Justice Antonin Scalia (who hadn’t been on the high court when Chevron was decided) praised Chevron to the skies, saying it “more accurately reflects the reality of government, and thus more adequately suits its needs.”
Twenty years later, Scalia had changed his mind, and earlier this month his son Eugene, who was labor secretary under Trump, wrote in The Wall Street Journal that the trouble with Chevron deference is that agency chiefs no longer defer to agency lawyers; they just do whatever they want. Naturally Eugene Scalia, like his father a lawyer and also a onetime solicitor (i.e., chief lawyer) at the Labor department, excepted himself from this harsh analysis.
Why did conservatives fall out of love with Chevron? I am not a lawyer, and therefore will furnish not a legal theory of the case, but rather, a practical one. When Chevron was decided, most federal judges were appointed by Democrats and wanted to press federal agencies to follow their regulatory mandates as aggressively as possible. Conservatives wanted these liberal judges to back the hell off and allow Reagan’s EPA to follow regulatory mandates much less enthusiastically. Did I mention that the industry-friendly EPA administrator in question was Ann Gorsuch, mother of Supreme Court justice Neil Gorsuch?