Chevron’s death is a victory against federal overreach

Gov. Mark Gordon was right to applaud the recent U.S. Supreme Court decision that hammered the final nail in the coffin of what was known as the “Chevron deference.” For states and their rights to govern closest to the people, it is indeed a victory. 

“Chevron deference,” coined from a 1984 Supreme Court decision, had already suffered several legal blows in the past decade, but its final death last week should be seen as a necessary win in the battle to strengthen our country’s sacred separation of powers, a vital component to the system of government our Framers created. 

And it’s a victory for those who believe Congress needs to wake up and start doing its job properly, while the executive branch needs to follow laws judiciously, regardless of who’s in the White House. This 40-year-old idea of punting to unelected officials in federal agencies has created four decades of enforcing far too many incorrect interpretations, giving agencies unimaginable powers to create ossified rules with no accountability to the people ruled by them. That is now gone for good. 

Gordon said in a statement last week, “For years, unelected bureaucrats running federal agencies in Washington D.C. have used ‘deference’ as an excuse to target certain industries based on politics. Wyoming has experienced that firsthand. Limiting their power to overreach is cause for celebration, and this ruling begins that process.”

How exactly were agencies able to achieve overreach under Chevron? Through agency actions bolstered by a Supreme Court decision that created an unchallengeable diktat. Quite simply, where laws, as (poorly) written by Congress, were vague or ambiguous, the 1984 ruling set up a two-step process for papering over the murky depths. “Is Congress’ intent clear? If not, is the executive interpretation reasonable?” These were the questions asked and answered under Chevron. “Reasonable” became the only standard.

So, any “reasonable” interpretation of murky congressional law was cleared up by agency rulemaking — and not by congressional or judiciary action. And that was that. Those harmed by the “reasonable” interpretation in Washington had little recourse going forward. Not a great way to govern. 

The Chevron decision came in the same week Gordon rolled out his initiative to highlight his administration’s years-long efforts, through numerous state agencies, to push back against federal overreach and give Wyoming a stronger say in the federal politics that affect our citizens daily. The similarities between these two events can’t be missed. 

The fall of the ”Chevron deference” only days after Gordon spent time showcasing the state’s costly work against the federal government’s overreach (often using the same kinds of rulemaking-as-law tactics) was timing kissed by the political gods. Something most governors aren’t so lucky to receive, but perfect for pointing out why federal actions often come at the expense of states’ rights. 

The overturning of Chevron, coupled with recent examples showcased by the governor of Wyomingites fighting the federal government on a host of issues, punctuates the continual tensions between the federal state and our state. And it’s a tension that isn’t ever going to end, but one that needs to be constantly tended to, as Gordon (and many past Wyoming governors) have done throughout their administrations. 

“The court has essentially removed the fox from the hen house,” Gordon said regarding the Chevron decision. “This decision ensures that agencies can no longer unilaterally expand their authority beyond the letter of the law. It rejects the strategy of attacking a state’s industries through rules and regulations like those advanced by the Biden Administration.”

When Gordon discussed the state’s myriad lawsuits against the federal government, he brought along several agency heads. They included Wyoming Department of Environmental Quality Director Todd Parfitt, who spoke about the unfair, debilitating tactics being used by — in this instance — the Environmental Protection Agency. The governor’s office said Wyoming was contending with at least 125 rules and regulations issued by the EPA alone, with another 98 proposed.

“These new rules have moved forward with little to no engagement with the state’s DEQ, which implements most of these programs impacted by these new rules,” Parfitt said. “These federal agencies appear to be more interested in the quantity of regulations versus the quality of regulations. Equally concerning is that these agencies have historically demonstrated that they are incapable of keeping up with implementing rules already in place, leading to increased litigation.”

It’s clear “quantity over quality” will be the unflattering legacy of the Chevron deference. 

Federal rule-making to advance oftentimes unpopular policies harms the proper functioning of government. It only further erodes trust in government and cultivates deeper divisions among peoples, creating a kind of constant tit-for-tat that is dangerous for our country and our state. 

It is simply the worst way to govern or be governed. And for that, Chevron’s death is a welcome victory. 

I’ll end by asking a question sparked by something I read because I think it speaks to the conflicts that created Chevron deference in the first place: How do we act together when we don’t think alike? 

The answer, as outlined in Yuval Levin’s excellent and highly recommended book, “American Covenant: How the Constitution Unified Our Nation — and Could Again,” is that the Constitution is our guide, for in it the Founders created the system of representation, competition and argumentation that allows us to deal with one another and find common actions. This system of government of ours isn’t perfect, but it’s pretty darned close, if we care to keep it. 

Nowhere in the Constitution did our Founders suggest that rules (like taxes) made by far-off unelected entitles were a proper way to govern or be governed. 

I believe we can act together best when we find agreement locally, with elected representatives closest to the people, hammering out a compromise, held accountable by those who must live with the agreement. That’s the answer. So, bye, bye, Chevron!