Since 1984, the U.S. Supreme Court’s decision in Chevron v. Natural Resources Defense Council has allowed federal agencies the authority to “reasonably interpret” federal statutes if a question is not specifically addressed by Congress. Courts, in other words, are required to defer to the federal agencies’ interpretation of the law.
For over 40 years, Chevron has been a foundational framework of administrative law, as the decision has been cited in over 15,000 cases establishing precedent for courts to defer interpretations of the law to each administrative agency.
On Jan. 18, the Court heard oral arguments in a challenge to this rule, known as the “Chevron Doctrine” or “Chevron Deference”.
Supporters of the Chevron doctrine believe that federal agencies are better suited to the task of interpretation than federal judges, whom they believe are not capable of understanding the nuances and needs of each industry.
Critics of the doctrine, however, believe it allows administrative agencies to go beyond what Congress intended, without any meaningful check from the judicial branch. They refer to the administrative apparatus as the “administrative state,” arguing that the doctrine has given agencies such a wide birth to autonomously promulgate rule changes that its become something of a de-facto fourth branch of government. Critics argue that Chevron doctrine has allowed agencies to create capricious and unconstitutional regulations without proper checks or balances.
Owning to the fact that agencies are rarely overruled in court on their interpretations, agencies have something of a leg up in court. Some scholars believe this has made federal agencies more adventurous in stretching statutory language.
While Chevron deference impacts every federal agency, this dynamic has been most prevalent in labor and employment law.
According to an Amicus brief filed by the Coalition for a Democratic Workplace (CDW) and Associated Builders and Contractors—which collectively represent “over ten million workers” — the Chevron doctrine has wrought mischief “in the area of labor law, where the National Labor Relations Board (NLRB) has expansively and inconsistently interpreted the National Labor Relations Act for decades with the protection of Chevron.”
The Amicus brief alleges that the Chevron doctrine has enabled the NLRB’s “unworkable track record of frequent flip-flopping,” due in part to a consistently changing Board.
According to the filing by CDW, “the Board’s membership is subject to frequent and continued change, and whenever a new Board majority disagrees with a prior precedent, it often overrules that precedent.”
Additionally, “it is customary (though not mandated by statute) that no more than three of the five members will belong to the President’s political party.” This means each President can guarantee a majority of the Board will share his ideological priorities. The CDW argues this has created instability as rules are constantly changing with each new Board.
In an opposition Amicus brief, the AFL-CIO has urged the Court to leave Chevron doctrine alone.
Overturning Chevron would unsettle decades of precedent, increase the workload of the federal courts, and dramatically increase partisan division in judicial decisions, thus further eroding public confidence in the courts.
While the NLRB’s jurisdiction is limited to private-sector union issues, whenever the Board makes determinations, state and federal labor boards regulating public-sector unions often follow that interpretation of the law. David Osborne, Senior Fellow of Labor Policy for the Commonwealth Foundation explains:
Private- and public-sector unions are different in kind, yet state labor boards regulating public-sector unions often follow NLRB decisions as persuasive authority. That means NLRB policymaking has implications that go way beyond individual private-sector disputes and turn out to affect public employees and taxpayers everywhere. Concerningly, the NLRB is highly politicized, and many of the policies adopted on the state level seem to favor politically aggressive union officials over everyone else.
Individual employees already find it difficult to secure justice against misbehaving union officials. An exhaustive review from 2015-2022 reveals that the Federal Labor Relations Authority (FLRA), the quasi-judicial administrative court tasked with adjudicating labor board complaints, sided with labor unions more than 99% of the time, over federal employees. Of the 1,211 charges, less than 1% resulted in enforcement action against the union. Just twelve cases resulted in a bilateral agreement or settlement.
While opponents of reform argue that alterations to the Chevron doctrine will gum up the works, and clog federal court dockets, reformers are hopeful for consistency, stability, and legal clarity.