What Was Chevron Deference? (2023)

Regulatory impact and lawsuits

• Many expect significantly more lawsuits challenging existing regulations, since agencies keep current rules until sued and now face less deference.
• Corner Post ruling (discussed in thread) lets new entities sue over old rules based on “first injury,” enabling deliberate venue-shopping in favorable circuits (especially the 5th).
• Concern that courts and dockets will be overwhelmed; injunctions may let firms ignore rules during long litigation.
• A minority view: system will “adjust,” Chevron is not a single pillar, and the change is manageable.

Shift in power: agencies vs courts vs Congress

• Broad agreement that practical power shifts from expert agencies to the judiciary, not to Congress.
• Critics argue Congress is too polarized and inactive to replace agency rulemaking with detailed statutes, so judges (and corporate litigants) effectively gain policymaking power.
• Some praise the decision as reining in an unaccountable “administrative state” and restoring separation of powers; they see Chevron as an unconstitutional delegation workaround.

Expertise, technical questions, and regulatory capture

• Kagan’s dissent is repeatedly cited: courts will now decide highly technical regulatory questions once left to agencies with relevant expertise.
• Worries that judges lack scientific/technical background and will lean heavily on “expert witnesses,” often funded by regulated industries, worsening corporate capture through litigation.
• Others respond that courts have long handled expert testimony; agency experts remain available as advisors, and Congress can still explicitly delegate well-defined tasks.

Environment, health, and market behavior

• Strong fear that large corporations (often via funded “small” plaintiffs) will use the new regime to undermine environmental, labor, and consumer protections (PFAS, pollution limits, non-competes, etc.).
• Counter-arguments claim many harms are driven by government interference and regulatory capture; scaling back law and delegation would reduce “nanny state” micromanagement and market distortions.
• Debate over whether market forces alone deter pollution and abuse; critics cite historical pollution and externalities, defenders invoke “true free market” arguments.

Border patrol and constitutional rights (disputed)

• One claim ties Chevron to CBP’s broad border search powers; multiple replies say those precede Chevron and rest on constitutional doctrine, not agency deference.
• Consensus in-thread: overturning Chevron likely won’t meaningfully fix border-policing abuses.