Unfortunately, federal courts have interpreted the Chevron case in such a way as to cause them to defer heavily to the agency and essentially “wash their hands” of the burden of reviewing the agency interpretations. Perhaps some agency deference is appropriate—but not the near total abdication that seems currently to be exercised by lower federal courts in their review.
Fortunately, in a dissenting 2013 court opinion, Chief Justice John Roberts joined by Justice Anthony Kennedy and Justice Samuel Alito Jr. objected to so-called “Chevron deference” to agencies by stating the following:
“My disagreement with the court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference.”
Moreover, in a lower court opinion concurred in by now Justice Neil Gorsuch he also objected to excessive Chevron deference to agencies by stating the following:
“And it is a problem for the people whose liberties may now be impaired not by an independent decision-maker [meaning a federal court] seeking to declare the law’s meaning as fairly as possible—the decision-maker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”
Existing United States Supreme Court opinions can be narrowed, overturned or clarified as the composition of the membership of the court changes. There is hope.
This story first appeared in the November/December 2018 issue of Tobacco Business magazine. Members of the tobacco industry are eligible for a complimentary subscription to our magazine. Click here for details.
– Contributed by Henry C. Roemer III, a business law attorney and partner at Finger, Roemer, Brown & Mariani LLP. He has extensive legal experience in tobacco and business transactional matters, and he represents tobacco companies in all aspects of compliance with federal, state and local matters.
