Since the New Deal era, the bulk of the functioning US government is the administrative state — think the acronym soup of agencies like the EPA, FCC, FTC, FDA, and so on. Even when Capitol Hill is not mired in deep dysfunction, the speed at which Congress and the courts operate no longer seems suitable for modern life. Both industry and ordinary people look to the administrative state, rather than legislators, for an immediate answer to their problems. And since 1984, the administrative state largely ran on one Supreme Court precedent: Chevron USA, Inc. v. Natural Resources Defense Council (NRDC).
That decision has now been overturned. Admin law is not always interesting, but the simple fact is when it comes to the day-to-day, agencies are the most impactful part of the federal government. No single policy writer at The Verge can fully articulate the impact of Friday’s Supreme Court decision and how profound its effects will be. The administrative state touches everything around us: net neutrality, climate change, clean air and water, and what scant consumer protections we have.
The true scope of this ruling will not be immediately felt, and what replaces Chevron deference is still unclear. The regulatory state has been under steady attack from an increasingly conservative judiciary for a long time. Some of the agencies we follow most closely were kneecapped even before this decision — one expert we talked to said that Chevron had been a “dead letter for quite some time.”
Still, this is a formal turning point. The biggest policy stories at The Verge have centered around federal agencies. And for a long time, the kind of regulation that actually kept up with the pace of technology was mostly coming out of agencies. It is in the years to come that we will wonder, “Why isn’t anyone doing anything?” or “How can a court just unilaterally do that?” about issues that range from trivial to life-threatening.
We’ll look back on this moment as a pivotal part of how we got there.
It is a longstanding doctrine in which courts defer to federal agencies when there are disputes over how to interpret ambiguous language in legislation passed by Congress. The underlying reasoning is that subject matter experts within the agency are probably able to make more informed decisions than a judge recently assigned to the case. Chevron deference is strong deference — and the low bar for deferring to agencies means that regulations tend not to get tied up in court.
“The key point of Chevron was that laws like these are policy decisions, and those policy decisions should be made by the political branches responsive to the voters, Congress and the president, not by unaccountable judges with no constituents,” David Doniger, an attorney and senior advisor to the NRDC Action Fund, said in a press briefing earlier this month. Doniger happened to litigate and lose the case that gave Chevron deference its name.
While the practice had been in place for decades before, it came to be known as Chevron deference after a 1984 case: Chevron v. NRDC. The Supreme Court ruled in favor of Chevron, allowing the Ronald Reagan administration’s industry-friendly Environmental Protection Agency to stick with a lax interpretation of the Clean Air Act.
Over the years, Chevron deference has enabled federal agencies to tackle all sorts of issues that legislators have yet to cover — from addressing greenhouse gas emissions causing climate change to regulating broadband access. As the conservative legal movement to disempower the administrative state grew, Chevron deference became — in certain circles — shorthand for government overreach.
Before its decision to overturn Chevron, the Supreme Court had already dealt a blow to federal agencies’ regulatory authority by strengthening the “major questions” doctrine in its 2022 decision in West Virginia v. EPA. According to the major questions doctrine, a federal agency shouldn’t have the leeway to craft regulation on an issue of major national significance if Congress hasn’t explicitly allowed it to do so in legislation.
When two cases calling for an end to Chevron deference worked their way up to SCOTUS, the writing was on the wall
The same bloc of six conservative justices that formed the majority in West Virginia v. EPA also overturned the longstanding precedent of Roe v. Wade — an even older case than Chevron — in the same month. When two cases calling for an end to Chevron deference worked their way up to the Supreme Court this year, the writing was on the wall — and once again, those same six justices overturned Chevron.
Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce were factually about an agency rule on fishing boats, but everyone more or less knew that Chevron was on the line. The cases garnered support from a broad swath of industry interests, including Gun Owners of America and e-cigarette companies.
Legal commentator Matt Ford wrote earlier this year that this interplay between the judiciary and industry was hardly an open secret, quoting Don McGahn — who would eventually become Trump’s White House counsel — at CPAC 2018 saying outright that “the judicial selection and the deregulatory effort are really the flip side of the same coin.”
It’s not yet certain what has replaced Chevron, though some of the wording in the decision suggests we may fall back on a doctrine known as Skidmore deference — a weaker deference, meaning that judges have more power to block agency rules. “The idea that Skidmore is going to be a backup once you get rid of Chevron, that Skidmore means anything other than nothing, Skidmore has always meant nothing,” Justice Elena Kagan said during oral arguments in January.
The Federal Communications Commission has famously interpreted Title II of the Communications Act to regulate internet service providers as common carriers in a policy known as net neutrality. Reclassifying ISPs as telecommunications services, rather than information services, would let the FCC impose more regulations on the industry, including mandating that they can’t unfairly block or throttle internet traffic. The idea is to keep ISPs from controlling what information users do or don’t see on the internet. In its latest move to restore the rules, the FCC said reclassifying ISPs as common carriers would also give the agency more oversight over internet outages and help it better secure internet infrastructure.
That interpretation could come under threat, even as the FCC just recently voted to reinstate net neutrality after it was repealed during the Trump administration. “Overruling Chevron has the potential to change the tenor of the impending judicial challenge to the new net neutrality rules dramatically,” University of Pennsylvania Carey Law School professor Christopher Yoo wrote in an article published prior to the Supreme Court ruling. That’s in part because prior judicial review relevant to net neutrality has taken Chevron deference into consideration.
For example, even when the FCC previously chose to classify ISPs in a way that would lead to lighter-touch regulation, the Supreme Court ruled in National Cable & Telecommunications Association v. Brand X Internet Services that Chevron deference should be applied to the FCC’s interpretation of the Communications Act. “Brand X’s conclusion that the statute at issue is ambiguous made it highly likely that reviewing courts applying Chevron would uphold the net neutrality rules under review regardless of whether they were regulatory or deregulatory,” Yoo wrote.
The downfall of Chevron deference could completely change the ways courts review net neutrality, according to Bloomberg Intelligence’s Matt Schettenhelm. “The FCC’s 2024 effort to reinstitute federal broadband regulation is the latest chapter in a long-running regulatory saga, yet we think the demise of deference will change its course in a fundamental way,” he wrote in a recent report. “This time, we don’t expect the FCC to prevail in court as it did in 2016.” Schettenhelm estimated an 80 percent chance of the FCC’s newest net neutrality order being blocked or overturned in the absence of Chevron deference.
There’s still some hope at the appeals level that the FCC could successfully argue that its interpretation of its authority to regulate broadband is the best way to read the law. But Schettenhelm told The Verge it will be a “tough sell” to a conservative and business-friendly Supreme Court, which could make the final call on net neutrality.
After the opinion came out, the Information Technology and Innovation Foundation (ITIF), a think tank that receives funding from ISPs including AT&T, Comcast, and Verizon, cheered the decision and said it makes it “even less likely that the FCC’s recent regulatory overreaches on Digital Discrimination and Title II for the Internet will survive judicial review.” ITIF said the FCC’s November 2023 digital discrimination order — which allows the agency to fine telecom companies when they fail to provide equal connectivity to different groups without a good reason — could also be in danger. “Now, the Commission will no longer have the refuge of statutory ambiguity to shield this overreach from judicial scrutiny,” ITIF director of broadband and spectrum policy Joe Kane said in a statement.
“It’s no coincidence that Chevron itself was an environmental case … especially for an agency like the Environmental Protection Agency that makes these highly technical, highly scientifically based decisions under very, very complicated statutes. Chevron was very important,” Lisa Heinzerling, a professor of law at the Georgetown University Law Center, said in a call with The Verge prior to today’s opinion.