Home Builders Urge Supreme Court to Scuttle ‘Chevron Doctrine’

WASHINGTON — One of the largest trade associations in the United States is urging the Supreme Court to overturn the so-called “Chevron Doctrine,” the rule stemming from a landmark 1984 ruling that established the legal test for when courts should defer to a federal agency’s interpretation of an unclear statute.

From the moment the high court handed down its opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., business groups and others have assailed it, saying the Doctrine gives the government an unfair advantage when someone challenges a regulation in court.

In May, the justices announced they will review a case next term that squarely calls into question the appropriateness of the Chevron Doctrine.

The case, Loper Bright Enterprises v. Raimondo, revolves around the power of the National Marine Fisheries Service to require herring fishing operations off the coast of New Jersey to pay for federal monitors on their boats.

Relying on Chevron, the U.S. Circuit Court of Appeals for the District of Columbia rejected the companies’ challenge to the rule. 

The court explained that federal fishery law is clear that the government can require fishing boats to carry observers to ensure compliance with fishery management plans. 

But the court conceded the statute doesn’t say who must pay for the observers. To resolve the matter, the circuit court deferred to NMFS’ interpretation of the law that required the fishermen to pay for the observers because it was “reasonable.”

Should the court overturn the doctrine, it would have major implications for the Biden administration and the executive branch in the long term, enabling challenges to virtually any decision a regulatory agency makes.

On Thursday, the National Association of Home Builders announced it has filed a friend-of-the-court brief in the case.

In it, the association argues that over the past 40 years, numerous problems have been uncovered due to Chevron.

“First, it clearly is biased toward federal agencies by granting them broad leeway to interpret and implement regulations,” the association says. “Second, Chevron puts too much power in the hands of the unelected agencies. As part of the executive branch, the federal agencies must enforce the laws. 

“However, because Congress also delegates its authority to write the regulations, the agencies both create and enforce many laws. Chevron adds to that problem by putting a “thumb on the scale” in court. Thus, the power of the legislature, executive and judicial branches are merged in the hands of unelected bureaucrats.

“Finally, Chevron gives Congress an incentive to write ambiguous laws. Lawmakers want to get statutes passed. Chevron, however, allows Congress to forgo doing the difficult work of drafting clear laws by letting it pass the work off to the agencies. The agencies can then continuously change the law — and the intent of Congress — by implementing their own interpretation as long as they are ‘reasonable,’” the filing said.

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