Explainer: Judge Kavanaugh and why you should care about ‘Chevron deference’
Religion & Liberty Online

Explainer: Judge Kavanaugh and why you should care about ‘Chevron deference’

Judge Brett Kavanaugh made a second appearance before the Senate Judiciary Committee today for his Supreme Court confirmation hearing. During questioning, Kavanaugh was asked about a controversial, but little-known, legal doctrine called “Chevron deference.”

Here’s what you should know about Kavanaugh’s position and why you should care about Chevron deference.

What is the Chevron the Senate is referring to? The gas company?

Yes, though indirectly. Chevron, the corporation, was the plaintiff in the landmark Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This case is one of the most important in administrative law and set the standard known as “Chevron deference.”

What was the case about?

The Clean Air Act, which regulates air pollution at the national level, includes a requirement that States establish a permit program regulating “new or modified major stationary sources” of air pollution. The Carter administration defined “stationary source” as any device in a manufacturing plant that produced pollution. But after Ronald Reagan was elected in 1981, his EPA (which was headed at the time by Judge’s Gorsuch’s mother, Anne M. Gorsuch) said that “source” meant the entire plant.

The Natural Resources Defense Council challenged that redefinition in federal court and won. Chevron, which was affected, appealed and the case went to the Supreme Court. The Court ruled in 1984 that when Congress passed a law that did not have a clear meaning, the courts should defer to reasonable interpretations by the federal agency applying the law. The Court said, “The EPA’s interpretation of the statute here represents a reasonable accommodation of manifestly competing interests, and is entitled to deference.” This standard has since been referred to as Chevron deference.

Wait, isn’t the judiciary branch in charge of interpreting laws?

We often think that the judiciary is the branch of government responsible for interpreting the law. But because of Chevron deference the executive branch, through the various regulatory agencies, provides most interpretation of statutes. Regulatory agencies handle administrative law, primarily by codifying and enforcing rules and regulations. When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place. Because of the judiciary branch has established the Chevron deference, any interpretation that is deemed “reasonable” is likely to be the standard that is used.

What’s the problem with Chevron deference?

It depends on how you view the Constitution. If you believe the Constitution was put into place to provide checks-and-balances, then the judiciary “deferring” to the executive on almost all interpretations of administrative law might be a problem.

What’s Kavanaugh’s position?

Earlier today, Senator Orrin G. Hatch (R-Utah) asked Kavanaugh about his view of the powers of administrative agencies. According to the New York Times, “Kavanaugh touted several rulings in which he had upheld environmental regulations rather than striking them down, but he gave little sign of support for Chevron deference, insisting instead that executive branch agencies must not be permitted to ‘rewrite’ laws passed by Congress to expand its authority.”

“I’ve heard it said that I’m a skeptic of regulation,” said Kavanaugh. “I’m not a skeptic of regulation at all. I’m a skeptic of unauthorized regulation, of illegal regulation, of regulation that is outside the bounds of what the laws passed by Congress have said.”

Why should Christians be concerned about Chevron?

The main reason we should be concerned is because Chevron deference gives thousands of technocrats in federal agencies authorization to make decisions that affect our lives in the minutest ways. A prime example are the “mandates” that Obama’s Health and Human Services was able to create by “interpreting” the law in ways that sometimes violated religious liberties. The agencies often interpret a statute in a way that was not intended by our elected representative.

Chevron deference is too powerful a tool to leave to an unelected administrative state that continues to encroach on the freedoms of Americans.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).