The Supreme Court heard arguments against Chevron deference this week, the legal test for when federal courts must defer to a government agency’s interpretation of a law.
Travis Cushman, American Farm Bureau Federation Deputy General Counsel for Litigation and Public Policy, says that the “Chevron deference is a judge created rule about 40 years ago that basically told judges not to decide hard questions of law but to defer to federal agencies. As a result, what this basically does is it takes power away from Congress, away from the judges, and creates a super branch of government, led by these executive branch administrative agencies.”
Cushman says Chevron deference has fundamentally changed the government, impacting agriculture. He says, “Every agency we work with as a result of this has tried to attempt to enlarge their power beyond what Congress contemplated. For example, WOTUS, the Waters of the United States, over the past several decades, EPA and Army Corps continue to draft rules that are clearly outside of what Congress intended and lower courts will keep on deferring to the agencies saying, “this WOTUS rule is good,” and it’s not until we get to Supreme Court, the Supreme Court has to say “no, actually, this rule isn’t good.” So, it’s empowered the EPA, the Army Corps to put out WOTUS rules that eventually get overturned, but we get stuck with them for many years.”
The Supreme Court is evaluating whether to keep Chevron deference.
Cushman says, “The Court heard two cases that were challenging it. It was very exciting to be there. At the very least, it seems that all the judges agreed that Chevron is not workable as it is today. And I’m hopeful that we will get a majority to flat out get rid of the doctrine, which would return much more power to Congress and the judiciary and put the agencies back in their original function of just enforcing the law.”