A Slightly Different View on the Chevron Chatter

As a Black product of the working class and a former Teamster I suppose I agree that the Supreme Court’s jettisoning of Chevron deference may be the end of the world as I know it. As you may know, Chevron was a legal case that said that federal courts were required to “defer” to the statutory interpretations of federal agencies where a statute (within the “jurisdiction” of the agency) is vague, or ambiguous, and where the interpretation is “permissible” or “reasonable.”

So, suppose Congress created a commercial fence agency because it concluded that commercial fences affected “interstate commerce.” Then imagine the law creating the agency said that fences must be “sturdy,” but did not define what it meant by sturdiness. Citizens in support of commercial fences thought that such fences should be made of expensive, case-hardened Molybdenum steel. Businesses impacted by the fence law thought (predictably) that inexpensive plexiglass was plenty hard enough to get the job done. Who gets to decide what is required? If no administrative agency were involved, a court would decide (by parsing the language of the statute, the history surrounding creation of the statute, and so forth). But Congress has frequently (especially during the New Deal in the 1930s) given administrative agencies the statutory authority to fill “gaps” created by federal statutes (either intentionally or accidentally). And where such authority could not be identified it was presumed under cases like Chevron.

Was that presumption a good thing or a bad thing? It depends on what you think about the purpose of agencies and the authority of Congress. Did Congress intend to convey extensive authority to expert agencies to resolve technical problems? It probably did intend it in 1935 – when the agencies began to be created. What about in 1950? What about in 1970? What about now? Most people believing Government has a duty to protect people are Chevron supporters. Most people believing that Government has gotten too big and that agencies illegitimately regulate “stuff” Congress never intended are anti-Chevron. Chevron supporters tend to think that Chevron opponents are the servants of business. Chevron opponents probably agree, but argue that the business of America is business. And so it goes . . .

The labor and employment commentariat is currently about the business of convincing readers that the end of labor and employment law is at hand as a result of Chevron. I suspect that other cases are on their way that will be far more injurious than Chevron. But to this old, Black Teamster, there is a simpler problem with the argument. We just lived through a pandemic that showed in no uncertain terms that OSHA (for example) was not a reliable ally of workers. That is often written off as the result of “Trump” and malicious, conservative Supreme Court justices. But the story is much, much deeper. It has often taken decades to enact a “standard” regulating a known, obvious health hazard utilizing the ineffectual OSHA machinery (it took 45 years to enact a silica standard). This is not a bug of the system, it is a feature. All one has to do (in one’s vast free time) is read the legislative history of the OSHA statute. The rhetoric of Congress was overwhelmingly more protective of workers than court interpretations of the statute have turned out to be. Now Congress won’t even give workers the right to sue on their own (if OSHA won’t do it).

The NLRA has almost unequivocally allowed for permanent replacement and lockout of “economic strikers” since the (bipartisan?) 1960s. I started out as a teen-aged blue collar worker in 1977. Chevron was decided in 1984. I have very little doubt that things have gotten progressively worse for workers since Chevron was decided. I guess the reaction of the commentariat to this observation might be that things would have gotten even worse for workers (and more quickly) without Chevron. I think many workers of the current generation would be understandably unimpressed by this line of argument. I know I am.