The Supreme Court heard oral arguments Wednesday about an important issue known as Chevron deference, which comes from the decades-old Chevron precedent under which courts defer to administrative agency expertise. The dry-sounding subject could have profound implications, affecting things like regulations over business, the environment and much more, so it’s understandable why it has become a target for conservatives.
Toward the start of the lengthy hearing, Justice Elena Kagan’s questions to a lawyer arguing against the Chevron precedent illustrated the issue. She asked, for example, whether a new product designed to promote healthy cholesterol levels is a “dietary supplement” or a “drug”? Her inquiry raised the broader prospect of whether it should be courts or agency experts deciding questions like these.
"You think the court should determine whether a new product is a dietary supplement or a drug?" — Justice Kagan explains how overturning Chevron deference would turn the courts into non-expert policymakers. pic.twitter.com/gTDjNP6QwH
— Demand Justice (@WeDemandJustice) January 17, 2024
“You want the courts to decide that?” the justice asked incredulously.
She summed up the issue as whether the countless policy issues confronting the nation will be decided by courts that don’t have expertise or agencies that do.
"Will courts decide these issues as to things they know nothing about? Courts that are completely disconnected from the policy process … and that just don't have any expertise and experience in an area?" — Justice Kagan on what's at stake in the debate over Chevron deference pic.twitter.com/zLcZeXGqrd For context, it’s important to understand that the Chevron decision came in 1984, when Republicans had executive power and wanted to wield it instead of judges. Now that Republicans have reshaped the high court — cementing a 6-3 conservative majority — they want the justices to hold that power. As is often the case, Kagan’s questions got to the heart of the matter. But in many of the biggest cases in recent years, the Democratic appointee’s views have been relegated to dissents on the Roberts Court. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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