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Hubris squared: Chevron overruled in judicial power grab that will redefine separation between administrative state and church

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4ba238a4 b1f2 c3f6 7a32 7dc868033a5d Hubris squared: Chevron overruled in judicial power grab that will redefine separation between administrative state and church
The Supreme Court earlier today upended 40 years of administrative jurisprudence — stifling the federal government’s ability to effectively serve the American people. Stripping power from federal agencies will further endanger the besieged principle of separation between religion and state.

While the cases Loper Bright and Relentless have mostly flown under the radar, the court’s decision may turn out to be the most consequential of the year and goes a long way toward realizing the goals of the theocratic Project 2025. Many legal scholars have tried raising an alarm about the detrimental effect this chaotic move will have on numerous areas of administrative law, including health care, civil rights, workers’ rights, education, environmental justice and financial regulation. But I want to warn you about the effect it will have on the separation between church and state, religious freedom and other issues we deal with at the Freedom From Religion Foundation..

The court decision today shifts power away from administrative agencies and instead directs niche policy decision-making toward a judiciary chock full of Christian nationalists. The way major policy areas are regulated will now change hands from agencies full of subject-matter experts to the judiciary. It’s a power grab.

In a 6-3 decision authored by Chief Justice John Roberts, the court invalidated a longstanding administrative law principle called the “Chevron deference.” This deference, originating from the landmark case Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. (1984), compels federal courts to defer to a federal agency’s interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. There have been 70 Supreme Court decisions relying on Chevron, along with 17,000 in the lower courts, and several of the Environmental Protection Agency’s rulings for emissions regulations. The Federal Communications Commission’s stance on net neutrality, as well, has been based on cases decided on the Chevron deference. It applies only when Congress delegates authority to the agency to make rules carrying the force of law, and when the agency’s interpretation is made by notice-and-comment rulemaking or formal adjudication.

For those who don’t speak legalese, let me explain further. When a plaintiff challenges the validity of a federal agency’s action, Chevron requires courts to first determine whether Congress has clearly spoken to the legitimacy of the agency exercising the power at issue. If so, courts apply Congress’ mandate to the agency, with no deference to the agency’s interpretation. If Congress has not directly assessed the power at issue and/or the authorizing statute is ambiguous, the second step of Chevron is to determine whether the agency’s construction of the statute is a permissible and reasonable construction of the law, giving deference to the agency’s expertise. The reasoning is that when Congress has explicitly left a gap in the authorizing statute for an agency to interpret, there is an express delegation of authority to the agency (versus to the courts) to best determine how to achieve the goals set out by congressional statutes, unless the interpretation is arbitrary, capricious, or manifestly contrary to statute. Once again, for those who don’t speak legalese, Chevron deference allowed agencies to act with the knowledge that, so long as they don’t go completely crazy, they can enforce the laws they are assigned to administrate. But that’s over now.

“Chevron is overruled,” wrote Chief Justice John Roberts. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

Justice Elena Kagan, who authored the dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, read it aloud from the bench, a rarity that underscores the justices’ sharp disagreements in the case and its importance. The dissenters note that courts will now play a “commanding role” that Congress has not given them. “At its core, Chevron is about respecting that allocation of responsibility — the conferral of primary authority over regulatory matters to agencies, not courts,” Kagan wrote. She added, “Today, the majority does not respect that judgment. It gives courts the power to make all manner of scientific and technical judgments. It gives courts the power to make all manner of policy calls.”

For four decades, Chevron deference has allowed agencies to efficiently operate and determine matters under their subject-matter expertise. As noted by legal reporter Jordan Rubin, when Chevron was decided in 1984, conservatives had executive power and wanted to wield it instead of judges. However, now that conservatives have reshaped the high court and taken steps to impede the democratic process, they want the extremist judges to hold that power. Perhaps there is no better articulation of why this is problematic then the one given by Justice John Paul Stevens in his unanimous Chevron opinion:

Judges are not experts in the field, and are not part of either political branch of the government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the chief executive is, and it is entirely appropriate for this political branch of the government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

In our new post-Chevron world, agencies will have to defend their policies as a persuasive interpretation of congressional statutes, rather than simply a permissible construction of agency action under ambiguous statute language. The outcome of Loper Bright and Relentless restricts agency autonomy to regulate nearly every policy area, but at FFRF, we’re most interested in the decision’s impact on the separation between church and state. With Chevron deference overturned, religious organizations will have more favorable grounds for challenging secular rules that administrative agencies create.

For instance, a rule reimplemented by Biden agencies safeguarding religious freedom for beneficiaries of federally funded social services is now at risk. Federal rules adopted during the Obama administration required faith-based organizations that provided taxpayer-funded services to inform beneficiaries they were not required to attend religious programming to receive critical assistance. The rules helped protect the most vulnerable from being forced to attend a bible study or join in a prayer in order to access basic rights such as food or shelter. These rules were rolled back in 2020 under the Trump administration, which unlawfully put the interests of religious organizations ahead of the rights and needs of the vulnerable populations they serve. Now, without Chevron deference to agency reasoning, Christian nationalist judges are free to declare the Biden-era restoration as an invalid exercise of authority and put the harsh Trump rules in place indefinitely. No future administration would be able to fix the issue without a new explicit mandate from Congress.

Under the Affordable Care Act, the Department of Health and Human Services issued a mandate that required nonfederal public employers to provide access to contraceptives in their health insurance plans. A Catholic organization that provides housing, The Little Sisters of the Poor, has been actively fighting this interpretation of the ACA, saying that providing the option for contraceptive access to their employees goes beyond the ACA and betrays their religious beliefs. Chevron gave the department the power to review all of the scholarship on contraceptives, female health and child-rearing to decide whether women should get access to contraception through their insurance plans. Without Chevron, less weight will be given to agencies’ research processes. Instead of asking whether the agency’s decision is one out of many permissible ways to tackle health and human services, conservative judges can personally decide that the topic is too radical and beyond congressional authority of the agency.

Ultimately, this Supreme Court ruling has the power to affect anyone employed or served by the many faith-based social service providers. It will attack assurances that providers can neither withhold federally funded help based on faith affiliation nor require beneficiaries to participate in any religious activity in order to receive help. Agency rules help protect the most vulnerable populations from the beliefs and whims of judges and religious groups, but those very protections will now be muzzled by the ultraright Supreme Court.

Adding insult to injury, anti-abortion activists are already celebrating the ruling as a big win for their plans to further restrict medication abortion. “Getting rid of Chevron is the first domino to fall,” said Kristi Hamrick, strategist for Students for Life, in a statement.

In overturning Chevron deference, today’s Supreme Court decision marks a seismic shift in administrative law, snatching the ability to make complex decisions over regulatory matters away from federal agencies and awarding the power to themselves. As Kagan so elegantly explains, “A rule of judicial humility gives way to a rule of judicial hubris.”

A special thanks to FFRF summer intern Grace Kraimer for her help in researching and writing this blog. Grace is a rising 3L at the University of Wisconsin Law School with an interest in restorative justice. 

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