Supreme Court to decide scope of federal agency authority; USC experts available for comment and analysis

A long-standing doctrine that gives federal agencies latitude to interpret their regulatory authority will be challenged before the U.S. Supreme Court in January, the latest litmus test of the nation’s highest court.

Arguments in a set of cases challenging Chevron deference will begin on Jan. 17. Experts caution that overturning Chevron could not only reshape how policies for the environment, health and consumer protections are made and enforced, but also could threaten human health and safety. USC experts are available to discuss.

Contact: Nina Raffio, raffio@usc.edu or (213) 442-8464; USC Media Relations, uscnews@usc.edu or (213) 740-2215

Supreme Court may be looking to consolidate power in the judicial branch, experts say

“This court seems to have a clear agenda to weaken or perhaps entirely dismantle the administrative state and make it as difficult as possible for agencies to do their work,” said Clare Pastore, professor of the practice of law at the USC Gould School of Law.

“Many people, even those who don’t tend to reflexively defer to agencies, have concerns about the Supreme Court eliminating Chevron and either taking control itself of critical regulatory decisions or stopping agencies in their tracks by sending everything back to Congress.”

“It’s a little ironic for me,” said Pastore, who has spent her career suing agencies on behalf of civil rights plaintiffs and low-income communities, “because I have often found Chevron problematic since it loads the dice in favor of the agency. In my view, the better way to evaluate a regulation’s lawfulness is to use the framework in place before Chevron and which is still in use in many states including California.”

Contact: cpastore@law.usc.edu

Is Chevron the ‘Voldemort’ of administrative law?

“There are two main perspectives on this issue. One view is that the Supreme Court hasn’t cited Chevron in ages and that many administrative doctrines are actually quite open-ended. The outcome really depends on the attitude of the judges involved. While there is a formal doctrine of deference under Chevron, judges who disagree with an agency’s actions can usually find ways to circumvent it,” said Jeb Barnes, a professor of political science at the USC Dornsife College of Letters, Arts and Science.

“Then there are others that say Chevron is the Voldemort of administrative law—it’s always floating in the ether, even if not explicitly mentioned. It doesn’t matter whether it is being cited or not. Chevron has created norms that influence the division of labor between branches of government in contested administrative matters.”

Contact: barnesj@usc.edu

EPA will have no ‘breathing room’ to tackle climate realities

“I think the Biden Administration is already (or should be) working on the assumption that the EPA will get no deference from the Supreme Court on any statutory interpretation issue related to climate change,” said Robin Craig, an expert in environmental law at USC Gould. “This is mostly relevant to the Clean Air Act, and the Court has made it abundantly clear that it is not giving the EPA any breathing room to adjust the statute to climate change realities.”

“Notably, however, Massachusetts v. EPA — the Court’s 2007 decision that determined that greenhouse gases are ‘pollutants’ under the Clean Air Act — turned in part on denying Chevron deference to the Bush administration’s interpretation. So, it’s important to remember that the value of Chevron deference to dealing with climate change also depends on what the agency is trying to do. If we change presidents in 2025, it might be more helpful to not have Chevron deference 😇.”

Contact: rcraig@law.usc.edu

Judicial partisanship an ‘historical oddity,’ USC expert says

“If you know something about the partisanship of U.S. presidents, you’d see that all the liberal judges were appointed by Democratic presidents and the conservatives by Republican presidents. That may seem obvious in today’s polarized America, but actually, it’s an historical oddity. Only since 2010 have there been such a clear alignment between the justices’ partisanship and their ideological leanings,” said Lee Epstein, an expert in constitutional law and judicial behavior at USC Gould during the school’s annual U.S. Supreme Court Preview on Oct.19.

The conservative court dominated in 2021 with Republican victories in major cases on abortion, guns, religion and climate change, Epstein said.

“The 2022 term was a bit different. Sure, there were some highly salient conservative victories, but there were also at least a few surprising liberal wins, notably over racial gerrymandering. What will we see this coming term, the relentlessly conservative court of 2021, or the more moderate-ish court of 2022?”

Contact: lepstein@law.usc.edu

Additional experts

Max Aung is an expert in environmental justice and an assistant professor in the Division of Environmental Health at the Keck School of Medicine of USC. Aung recently spoke about the risks of PFAS or “forever chemicals” at a press conference where California Attorney General Rob Bonta announced the state is enforcing new requirements for companies to disclose forever chemicals.

Contact: maxaung@usc.edu

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Rebecca Brown is a nationally recognized constitutional law theorist and expert in legal theory and judisprudence. She is the Rader Family Trustee Chair in Law at USC Gould.

Contact: rbrown@law.usc.edu

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