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Chevron Deference: How Brett Kavanaugh, Trump’s SCOTUS Nominee, May Affect Employment Law

August 17th, 2018 by David Minces


The nomination of Brett Kavanaugh, President Trump’s pick for the Supreme Court spot opened up by Justice Anthony Kennedy’s retirement, is in limbo. Senators are still meeting with the nominee. Staffers are still sorting through millions of pages of documents tied to Kavanaugh’s past as a federal judge and as George W. Bush’s White House Staff Secretary. Yet, all this has not stalled the media from extensively covering and issuing opinions on the man who may become the Supreme Court’s newest justice. Much attention has been centered on Kavanaugh’s opposition to a legal concept called “Chevron deference.”  If he is confirmed, Kavanaugh’s disagreements with the doctrine will certainly have legal effects, especially in employment law.

Chevron deference is a tool used by judges as a result of the Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The Environmental Protection Agency, then led by conservatives appointed by Ronald Reagan, had begun allowing industrial plants to purchase equipment that was not up to pollution standards as long as the plant’s total emissions did not increase. The EPA stayed within the bounds of the Clean Air Act by defining “stationary source” to include an entire plant, as the Act’s legislators had left the definition unclear. Environmental interests including the National Resources Defense Council thought that the EPA’s unconventional definition was unfair. Their case against Chevron, one of the companies that benefited from this new rule, was taken all the way to the Supreme Court. The Court sided with Chevron, arguing that government agencies like the EPA are free to interpret federal laws in a reasonable manner in areas when the federal law is ambiguous, even if a judge would interpret the law differently. The precedent that the courts should defer interpretations to governmental agencies spawned what is now known as Chevron deference.

Many legal analysts believe that the Chevron decision allows agencies, who have more experience and knowledge about their corresponding fields than judges and lawyers do, to interpret the law in ways that will benefit Americans the most. However, resistance to the deference is growing. Though the decision in Chevron benefitted industry in the short run, business opposition to the practice is growing as the precedent has been increasingly used to support bureaucratic growth. Chevron deference has been successfully implemented in the courts to defend Obamacare, net neutrality, and carbon emission limits. Ironically, the National Resources Defense Council has used Chevron deference on several occasions to defend the EPA against claims that it has overstepped its bounds. Thus, it is no surprise that critics of red tape would set their sights on eradicating Chevron deference. Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito have historically shown skepticism to this concept. Gorsuch has been especially vocal in his disillusionment with Chevron deference, arguing that it places too much power in the hands of unelected government bureaucrats.

However, now-retired Justice Anthony Kennedy was much less opposed to the precedent than his conservative colleagues. For most of his 30-year career on the Supreme Court bench, Kennedy was somewhat moderate on the issue. During this time, while he occasionally offered criticism of the doctrine, he stopped short of calling for its repeal, unlike the four Justices to his right. This changed only a few weeks before announcing his retirement, when Kennedy repudiated Chevron in his concurrence on Pereira v. Sessions, an immigration law case. Kennedy’s strong wording, which deemed it “necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron,” sharply contrasted with his previously reserved opinion.

On the issue of Chevron deference, Brett Kavanaugh represents an extension of the Kennedy seen during his last month on the bench. Like the other remaining conservative justices, Kavanaugh also opposes Chevron deference, though his reason for opposition is less partisan than Gorsuch’s. Kavanaugh believes that the concept forces judges to act upon their own biases in determining whether a certain statute is arbitrary enough for the Chevron deference to apply. This, he argues, detracts from the independence from partisanship that judges should possess.

The addition of one more Justice who strongly opposes Chevron deference may be enough to tilt the Supreme Court away from using it to support the enforcement of policies by federal agencies. This will have broad implications, especially in the realm of employment law. This year, Chevron deference has already come up in four Supreme Court cases, two of which involved labor disputes. Notably, in Epic Sys. Corp. v. Lewis, a case this blog has already covered, the Court found that the Federal Arbitration Act protects contracts that require individual arbitration and waives class and collective proceedings. In his opinion, Justice Neil Gorsuch explicitly declined to use Chevron to defer to the National Labor Relations Board, whose policies were contrary to the Supreme Court’s ruling.

While ending the application of Chevron deference will drastically change the way law works in America, this will not necessarily be a victory for business interests or employee interests. In fact, there is reason to believe that, in the short term, conservative Supreme Court Justices ignoring Chevron will actually strengthen liberal policies. Former President Obama had record-level success in appointing liberal and moderate judges to federal courts. Invalidating Chevron would shift power from governmental agencies headed by Trump appointees to the Obama-influenced courts.

Additionally, Chevron deference is a relatively new doctrine. The most impactful legislation in the employment field, including the Civil Rights Act and New Deal era reforms like the Fair Labor Standards Act, survived for decades before Chevron deference came into existence in 1984. The biggest change Americans will see would be a decline in the strength of bureaucracy. Though this will certainly affect everyday labor relationships, the scope of this impact is limited and does not favor one side over the other. In recent years, federal agencies related to employment law have swung between being very friendly to businesses and very friendly to employees, depending on which administration is in power. No matter where Chevron goes, the source of lasting, impactful changes in employment law will always be new laws passed by the Legislative branch.

Minces PLLC is committed to keeping up with the current trends in employment law so that we can best represent our clients. We will try to keep you updated whenever we notice any significant updates to the law. Follow us on Facebook to keep up with our employment law updates. If you are looking for legal representation from a firm with decades of combined experience in employment law, do not hesitate to contact us.

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