SCOTUS should put the Chevron Doctrine on the ash heap of history

In 1984, the Supreme Court decision in Chevron U.S.A. v. Natural Resources Defense Council created what has come to be known as Chevron deference, also referred to as the Chevron Doctrine.  In a nutshell, the landmark ruling, which has been cited in thousands of subsequent cases, gave federal agencies unprecedented power to interpret and administer (as they saw fit) ambiguous language in laws that fall under their purview.

Over the years, the Chevron Doctrine has been abused by several executive agencies, leading to calls for its overruling.

Fortunately, the U.S. Supreme Court has accepted to hear a case in its upcoming term, Loper Bright Enterprises v. Raimondo, which could result in the abolishment of the Chevron Doctrine.

In short, the case calls into question whether or not the National Marine Fisheries Service (NMFS) can force fishing companies to pay the salaries of NMFS employees who are allowed by law to monitor fishing vessels while they are at sea.

Specifically, the case revolves around a particular provision in the 1976 Magnuson-Stevens Act, which allows NMFS to "prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery."

NMFS argues that the provision allows the agency to exercise ample authority over fishing companies — so much so that the agency can even force small fishing companies to foot the bill for government monitors in practically any and all circumstances.

On the other hand, four family-owned and operated fishing companies are challenging NMFS, claiming that the agency has wildly overstepped its bounds.

In its complaint, the plaintiffs pose the following: "Whether, under a proper application of Chevron, the MSA implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry."  And "Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency."

Both of these questions will likely be answered by the Court, which could have a momentous impact on the future role of the administrative state.

As of now, based on recent comments from several Supreme Court justices, it would appear that the Court is more likely to rule in favor of scaling back the power of the federal agencies, if not outright overruling Chevron deference.

For example, in 2020, Clarence Thomas wrote in a dissenting opinion that "Chevron is in serious tension with the Constitution."

Likewise, Justice Neil Gorsuch has been a vocal critic of the Chevron Doctrine, arguing that it allows "executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design."

Gorsuch and Thomas are right.  The Chevron Doctrine has granted far too much power to the administrative state.

As the Constitution clearly states, Congress, not executive agencies, is in charge of lawmaking.  And the courts, not executive agencies, are in charge of interpreting said laws.

Of course, it is not a fait accompli that the Supreme Court will overrule or pare back Chevron deference.  However, based on the current makeup of the Court, it seems more likely than not.

If the Court does rein in the Chevron Doctrine, it would be a boon for freedom.  Moreover, it would send a clear signal to the executive agencies, which have usurped far too much power since the original sin of the Chevron Doctrine, nearly forty years ago.

Chris Talgo ( is editorial director at The Heartland Institute.

Image: Joe Ravi.

If you experience technical problems, please write to