Last week, a number of Democratic Senators filed an amicus brief in Loper Bright Enterprises v. Raimondo, arguing that the Supreme Court should not overrule Chevron. The first heading under the argument section of the brief is that:
CHEVRON … IS UNDER ATTACK IN THIS CASE BY PRO-CORPORATE SPECIAL INTERESTS
My first point is to ask whether, as a matter of strategy, an argument based on opposing “pro-corporate special interests” is likely to succeed before a SCOTUS that is largely sympathetic to corporate interests.
My second point is to emphasize, as I’ve noted in the past, that Chevron is not a left-right issue. The Trump administration pursued a number of regulatory initiatives based on statutory interpretations that heavily relied on Chevron deference.
Chevron, at its heart, is not even really about deference to agency interpretation. The real issue about Chevron is whether Congress has authority to enact statutes that enshrine broad principles, while leaving the Executive Branch to fill in the details. In other words, the opposition to Chevron is really just a back-door argument about the non-delegation doctrine. It’s an attack on Congress masquerading as an attack on the deep administrative state.