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The Counsel’s Corner: Is the Chevron Doctrine a Ghost Ship Waiting to Sink?

The Counsel’s Corner: Is the Chevron Doctrine a Ghost Ship Waiting to Sink?

Is the Chevron Doctrine a Ghost Ship Waiting to Sink?

The Supreme Court has granted review in a case where the petitioner has asked to overturn the Chevron doctrine. Justice Jackson has recused herself. From the 8 justices who will consider Chevron, it seems that Chief Justice Roberts as well as Justices Thomas, Gorsuch, and Kavanaugh have already criticized it in other cases.

The appellee’s mantra on appeal is that the administration should not be able to force a commercial fishing business to incur the cost and expense to quarter and pay a federal agent charged with inspecting the business just because the statute is silent about how to enforce the law. The appellant argues that the government can no longer use statutory silence to require courts defer to the executive branch’s legal and regulatory interpretations.

There are a few key legal points the appellant raises using its mantra. The appellant argues that Chevron moves judicial power and legislative power to the executive. The appellant also contends that Chevron itself relies on the text found in the Administrative Procedures Act, which requires courts, not agencies, interpret statutes and regulations. According to the appellant, Chevron should receive no or limited stare decisis effect because the doctrine does not involve substantive statutory or constitutional holdings.

Beyond the legal arguments, appellant has set forth various examples about how Chevron is unworkable and has precipitated negative consequences. But also, the appellant contends Chevron creates uncertainty because the meaning ascribed to rules shift as politics and politicians change. The appellant asks the Court to sink Chevron by hammering fairness, due process, and separation of powers arguments.

Business policy leaders are watching this unfold. Are you?

About the Counsel’s Corner
Becker attorneys represent public and private clients in complex business litigation throughout the United States in federal and state courts, and in arbitration.

The Counsel’s Corner, brought to you by Jon Polenberg, explores legal trends across multiple industry sectors and summaries new developments in digestible portions for today’s busy GC.

About the Author
Jon Polenberg is a senior trial lawyer for Becker & Poliakoff, P.A., headquartered in Ft. Lauderdale, FL, who regularly represents clients for their matters proceeding in state court, federal court, arbitration, and regulatory agencies. Jon also heads up e-discovery and data analytics for the firm’s business litigation practice. He represents clients in both symmetric and asymmetric matters involving varied complex e-discovery and legal issues.