Justice Kavanaugh Aims for Chevron But Hits Delegation
During yesterday's oral arguments in Relentless, Inc. v. Dept. of Commerce and Loper Bright Enterprises, Inc. v. Raimondo, Solicitor General Prelogar and the Democratic appointees who do not want to see Chevron deference abandoned invoked stare decisis. Justice Kavanaugh pushed back with a clever-seeming argument that, upon inspection, has far-reaching consequences.
SG Prelogar warned that overruling Chevron would be a "shock to the system" in various ways. Regulations that have already been upheld under Chevron as reasonable could be upended. And numerous statutes in which Congress left gaps on the assumption that expert agencies would fill them would now be interpreted de novo by courts, frustrating Congress's reliance on Chevron in writing the statutes the way it did.
Justice Kavanaugh pushed back by claiming that the real shock to the system comes from Chevron itself, which allows a Republican administration to replace a regulatory regime adopted by a Democratic one and vice-versa, all without any statutory change. "Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in," he said. "That is at war with stability. That is at war with reliance," he added.
Well played, no? Actually, no, unless Justice Kavanaugh's real target is not Chevron but delegation.
Consider Chevron itself. The Court construed the term "stationary source" in the Clean Air Act Amendments of 1977 as sufficiently ambiguous to allow the Carter administration's EPA to deem every smokestack a separate source and for the Reagan administration then to use the "bubble concept" by which all of the pollution-emitting devices in an industrial grouping count as a single stationary source, thus allowing cleaner burning parts to cancel out the dirtier parts. According to Justice Kavanaugh, that kind of change from one administration to the next is a shock to the system.
Maybe it is; maybe it isn't. But the problem inheres in delegation itself. To see why, suppose that the Clean Air Act contained an express delegation. Suppose it said something like the following: "The EPA shall treat each smokestack as a single stationary source unless, in the exercise of its reasonable judgment, it determines that the aggregate social costs of doing so outweigh the aggregate social benefits of doing so, in which case it may, in its reasonable discretion, aggregate pollution emitting devices within a single industrial group under a bubble concept."
Chevron does not come into play at all in construing the foregoing language; and yet the determination of the validity of an administration's shift to a bubble concept turns on exactly the same question as (what we now call) the Chevron step 2 analysis: Was the agency's decision reasonable? Every grant of discretion to an agency entails the possibility of shifting policy from one administration to the next. So if Chevron is at war with stability and reliance, then so is the express delegation of discretion to an agency.
Maybe Justice Kavanaugh thinks there's a problem if Congress grants agencies substantial discretion tacitly--via Chevron's approach to the reading of ambiguous--but not if it does so expressly. Seen this way, overruling Chevron would amount to the adoption a clear statement rule. It would mean that for Congress to grant agencies discretion, it must do so expressly; Congress could not rely on agencies to fill in gaps or clarify ambiguities.
But the Court doesn't need to overrule Chevron to get that result. It's already sprinting towards a requirement of a clear statement for delegation of agency authority via its enhancement of the major questions doctrine. To be sure, in Biden v. Nebraska, Justice Barrett wrote a concurrence arguing that the MQD should not be understood as a clear statement rule. Notably, however, neither Justice Kavanaugh nor any other Justice joined her. And even if one doesn't conceive of the MQD as a clear statement rule, it functions as one. So if Justice Kavanaugh were really concerned about improperly imputing intent to delegate to Congress where there is none, he wouldn't need to go after Chevron. He could count on the MQD.
Moreover, Justice Kavanaugh's complaint that changes in the law due to a new administration are "at war with stability [and] reliance" is a complaint about changes in law via agencies, full stop. It is, in other words, targeted at delegation per se, not at Chevron.
No one should be surprised. Overruling Chevron will mean Congress will not be assumed to have delegated power to agencies. The MQD does the same thing. But to really ensure that agencies can't regulate, the Court needs to forbid Congress from delegating power to agencies even when Congress does so clearly. Perhaps inadvertently, Justice Kavanaugh's jeremiad about stability and reliance reveals that a revitalized nondelegation doctrine remains this reactionary Court's real goal.