Chevron is worse for business
Joseffer et al. 23 [Daryl Joseffer is executive vice president and chief counsel at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce; *Andy Varcoe is deputy chief counsel at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce; **Helgi Walker is a partner in Gibson, Dunn & Crutcher's Washington, D.C. office. She is co-chair of the firm's global Litigation Practice Group; ***Russell Balikian is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher; ***Jessica L. Wagner is an associate in the Washington, D.C. office of Gibson, Dunn & Crutcher; ****Edward Ferguson is an associate in the Washington, D.C. office of Gibson, Dunn & Crutcher; On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit; No. 22-45; 7/24/23; “BRIEF FOR AMICUS CURIAE THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA IN SUPPORT OF PETITIONERS.”; https://www.supremecourt.gov/DocketPDF/22/22-451/272688/20230724120208874_Chamber%20-%20Loper%20Bright%20Amicus%20Brief.pdf; Accessed 6/29/24]//maikle
C. Modern Chevron doctrine has contributed to an unpredictable, unstable regulatory environment.
Since Chevron was decided in 1984, agencies’ regulatory reach has grown. See Free Enter. Fund v. PCAOB, 561 U.S. 477, 499 (2010) (noting administrative state now “touches almost every aspect of daily life”). “The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities.” City of Arlington v. FCC, 569 U.S. 290, 313 (2013) (Roberts, C.J., dissenting) (citation omitted). Hundreds of Executive Branch and independent agencies or components now make policy through rulemaking, to say nothing of adjudications for which agencies sometimes claim deference. See generally Federal Register, Agencies, https://www.federalregister.gov/agencies.
As a result, the scope of Chevron’s potential applicability has also expanded. The Code of Federal Regulations has ballooned from just over 110,000 pages in 1984 to more than 180,000 pages as of 2021, a 64% increase in the pages of regulations binding American companies and individuals. See Geo. Wash. Univ., Regul. Stud. Ctr., Total Pages Published in the Code of Federal Regulations, https://tinyurl.com/ bdex48mk. And the Federal Register has grown from roughly 50,000 pages in 1984 to well over 80,000 in 2022, a 60% increase. See Geo. Wash. Univ., Regul. Stud. Ctr., Total Pages Published in the Federal Register, https://tinyurl.com/bdd3cbzw.
By fostering sweeping deference to agencies, modern Chevron doctrine has exacerbated the qualitative problems inherent in this quantitative explosion of regulations. The doctrine has allowed agencies to accrete more and more power that properly belongs under Article I without judicial oversight under Article III. Emboldened by Chevron deference, agencies have adopted increasingly aggressive interpretations of the statutes they enforce, frequently finding “unheralded power to regulate” in seemingly open-ended language. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).
Consider the EPA’s effort to fundamentally restructure “the Nation’s overall mix of electricity generatio[n] to transition from 38% coal to 27% coal by 2030” based on “the vague language of an ancillary provision of” the Clean Air Act. West Virginia v. EPA, 142 S. Ct. 2587, 2607, 2610 (2022) (brackets and quotation marks omitted). Or the CDC’s effort to institute a nationwide eviction moratorium based on a “wafer-thin reed” of textual authority. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) (per curiam). Or the Department of Labor’s attempt to “transform the trillion-dollar market for IRA investments, annuities and insurance products,” and to “regulate in an entirely new way hundreds of thousands of financial service providers and insurance companies” in that market. Chamber of Com. v. U.S. Dep’t of Labor, 885 F.3d 360, 363, 387 (5th Cir. 2018).
The result is bad for free enterprise. Today’s morass of regulations, aggravated and encouraged by the expansion of Chevron, imposes astronomical costs in compliance, lost productivity, and higher prices, reaching as high as $1.9 trillion per year. See generally U.S. Chamber of Com. Found., The Regulatory Impact on Small Business: Complex. Cumbersome. Costly. 4 (2017). The costs are higher on average for smaller businesses. Id. The current Chevron regime also undermines stability and predictability for businesses because they cannot ascertain their regulatory obligations based on the laws that Congress has enacted. Rather, regulatory obligations today turn on unstable agency statutory interpretations, sometimes through prospective rulemaking and other times without any prior notice at all, in after-the-fact adjudications. When the stakes are high or politically controversial, the risk of instability only increases, as agency leadership changes from administration to administration. See, e.g., Sackett v. EPA, 143 S. Ct. 1322, 1332–35 (2023) (discussing long history of EPA and U.S. Army’s changing interpretations of “waters of the United States” in the Clean Water Act, 33 U.S.C. § 1362(7)); West Virginia, 142 S. Ct. at 2603– 06 (discussing EPA’s reversal from one administration to another on regulation of power plants’ carbon dioxide emissions).
The citizenry’s ability to elect congressional representatives means little “if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes” that one must guess at their content. The Federalist No. 62, at 379 (Madison). Today’s regulatory environment is not far from fitting that description. The endless cycle of what amounts to Executive Branch lawmaking raises transaction costs for businesses by introducing unresolvable regulatory instability into investment and strategic decisions. When agencies can unilaterally exercise core legislative power by exploiting general language in statutes to make rules of great economic significance, and later flip-flop on those rules, the resulting uncertainty makes it hard for businesses to plan for the future.