Adam White focuses on one of the key benefits of the U.S. Supreme Court’s recent decision overturning Chevron deference.
[T]he problem with the modern regulatory environment is not simply too many regulations, but also too much regulatory uncertainty. This goes to the very roots of our constitutional order. Both Alexander Hamilton and James Madison emphasized the need for steady administration of the laws; the Federalist is replete with references to it. “What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment,” Madison asked in Federalist 62, “when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?”
And from the start, these Founders knew that changes in presidential administrations would tend to exacerbate the problem. “To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert,” Hamilton warned in Federalist 72, and wild changes from one administration to the next would produce “a disgraceful and ruinous mutability in the administration of the government.”
Hamilton and Madison prized “steady administration,” and in his opinion in Loper Bright, so does Chief Justice Roberts. At the very outset of his analysis, he quotes Hamilton’s Federalist 78: “To ensure the ‘steady, upright and impartial administration of the laws,’ the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches.”
That is the key import of Loper Bright. It does not aim to prevent agencies from announcing sweeping, unprecedented new regulatory programs on the basis of vague statutes; the Court’s “Major Questions Doctrine” already accomplishes that.
Rather, it is designed to prevent agencies from constantly changing from one interpretation to another, or leveraging regulatory uncertainty under vague statutes. The theory behind Loper Bright is that over time, as more and more statutes are definitively interpreted by the courts, agencies will lose the ability to whipsaw from one policy to another, or to threaten novel interpretations under old statutes.
