Justice Anthony Kennedy has just used an otherwise minor case—it was decided 8-1—as an occasion to make a major statement on federal regulatory power that’ll have the right wing cheering. In his Thursday concurrence, Kennedy came out against Chevron deference, a principle established in a 1984 case that directs courts to defer to agencies’ reasonable interpretations of ambiguous laws.
Here’s what Kennedy’s open criticism of this principle means: Trump’s courts will soon have a lot more power to limit federal agencies’ authority to interpret ambiguous statutes. Conservatives and corporations will be able to challenge new and existing programs and regulations with greater confidence than ever in their likelihood of succeeding.
The right’s been gunning for Chevron for a while. Long-term war on Chevron deference has been conducted with renewed enthusiasm in recent years, as Joshua Matz points out at Take Care Blog:
Before this Term, Chevron was already under siege. Chief Justice Roberts, as well as Justices Thomas, Scalia, Alito, and Gorsuch, had assailed and narrowed the doctrine in published opinions, concurrences, and dissents. Moreover, in several landmark opinions, the Court either explicitly refused to apply Chevron (e.g., King v. Burwell, the second Obamacare case) or ignored Chevron where the government properly sought to rely on it (e.g., Texas Department of Housing v. Inclusive Communities, which upheld disparate impact liability under the Fair Housing Act).
Until now, Kennedy hadn't joined them. His declaration almost certainly turns the tide.
Given the looming threat of his retirement, it’s concerning that Kennedy suddenly took the initiative to make an unnecessary statement on such a major issue. Is he trying to wind down his tenure? Accomplish a few more things before he goes? If so, there’s even more to worry about—mainly, of course, the justice that would succeed him, who’ll make Kennedy’s episodes of conservatism look palatable.
