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Is This The Roberts Court Or The Clarence Court?

Chevron's return will tell us whose opinions, concurring or not, really matter.

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Supreme Court Holds Investiture Ceremony For Associate Justice Ketanji Brown Jackson

Photo by Collection of the Supreme Court of the United States via Getty Images

Back in June, the Supreme Court got rid of Chevron deference… right? It seems to be the case that the agencies preventing your hotdogs from having so much sawdust in them that they can’t be safely stored in the refrigerated section have no more say when it comes to figuring out what statutes actually mean. …But Chief Justice John Roberts, right-leaning centrist that he is, threw in a few head nods toward Chevron having a pulse. His majority decision didn’t go as far as the separation of powers approach in Clarence Thomas’s concurrence. Instead, Roberts reminded folks that Skidmore deference was a thing before Chevron, so the administrative framework based on the prior existing 40-year-old agency-interpreting framework wasn’t in immediate danger.

Congress is preparing to call Roberts’s bluff. From the ABA Journal:

A U.S. Senate bill introduced this week would codify the doctrine of Chevron deference, which allows courts to defer to agencies’ interpretations of ambiguous laws…The bill dubbed the Stop Corporate Capture Act “codifies the Chevron doctrine and strengthens the rulemaking process to block corporations from hijacking our government,” according to a July 23 press release by one of the bill’s sponsors, Democratic U.S. Sen. Elizabeth Warren of Massachusetts.

The bill does several things, but the most important is that it would “[a]llow agencies to conduct rulemaking based on reasonable interpretations of authorizing statutes.” Following Thomas’s reasoning, this is still a no-go. Congress would have as much constitutional authority to allow agencies to interpret statues as the Executive has to delegate matters of the purse to federal courts, which is none. For that, I’m thankful — it’s enough of a problem tracking Thomas’s money trails as is. But, if we’re following Roberts and the majority, this codification could be fair game.

If and when such codification gets passed and inevitably ends up at the Supreme Court, I doubt that we’ll get more wishy-washy answers. We’re gonna get a double-down. Prepare for a Thomas decision starting with the words, “I told you that you couldn’t do this last time.”

Bill Would Restore Chevron Deference Doctrine, Create Advocate To Help Citizens Participate [ABA Journal]

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Earlier: John Roberts Says Judges Should Decide How Much Rat Poison Is Too Much For Your Hot Dogs

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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