The Conservative Attack on Federal Agency Power

For decades, corporate elites and far right megadonors have fought to deregulate our economy by capturing the federal judiciary. Currently pending before the Supreme Court are several cases funded by these groups which could severely undermine the ability of federal agencies to protect the public good and collective well-being. These cases are being leveraged to curb agency authority and further conservative policy goals.  The results could be particularly devastating for Black and brown communities, since reducing the power of federal agencies would leave already vulnerable communities more exposed to exploitation by corporations and other institutions.  

In this brief, Dēmos staff experts explore the stakes and potential impact of Loper Bright v. Raimondo and Relentless v. Department of Commerce. 

The Court is poised to weaken the power of federal agencies 

This term, the Supreme Court will decide Loper Bright and Relentless, two cases that will determine the authority of federal agencies to interpret and carry out federal law. Together, the cases challenge a National Marine Fisheries Services rule that requires commercial fishing vessels to pay for government-appointed compliance monitors. But the dispute is about far more than who should bear the costs of marine compliance monitors.  

The plaintiffs in Loper Bright and Relentless are calling on the Supreme Court to overturn a legal principle known as Chevron deference. Established in the 1984 landmark case Chevron v. NRDC, Chevron deference requires courts to defer to agency interpretations of gaps and ambiguities in the laws they carry out, so long as their interpretations are reasonable.1 When Chevron deference applies, the court’s role is not to impose its own interpretation of gaps or ambiguities in a law; instead, the court’s role is simply to determine whether the agency’s interpretation is reasonable. An agency interpretation is reasonable unless it is “arbitrary, capricious, or manifestly contrary to the statute.”2  

For the past 40 years, Chevron deference has created a workable system for agencies to implement federal law. Congress does not generally draft laws with enough specificity for immediate implementation upon passage. Nor can Congress predict all the different ways a law may be implemented. It therefore relies on federal agencies, including public servants with relevant technical and policy expertise, to turn its directives into actionable rules and regulations. Overturning or significantly narrowing Chevron deference would fundamentally shift power from the executive branch to the judiciary by giving federal judges the authority to override agency rules in favor of their own policy preferences.  

Here’s what’s at stake

Federal agencies would have less power to enact regulations that protect the public. A weakened regulatory system prevents agencies from doing their job to protect the public. Agency regulations that prevent pollution, enforce labor laws, administer Medicare and Medicaid, and more could be in the far-right's crosshairs.  

Chevron deference doesn’t mean agency rulemaking goes unchecked. When agencies develop rules, they are required under the Administrative Procedure Act to solicit public feedback through the “notice and comment” process. Agencies are also charged with updating rules based on changing landscapes and further directives from Congress and the President.  

Federal agencies are given deference to interpret ambiguous laws, however, because they are best suited to implement federal law due to their subject matter expertise. For example, over 80 years ago, Congress passed the Fair Labor Standards Act (FLSA), landmark legislation that provided overtime protections to workers but carved out “white collar” workers.3 Congress delegated to the Department of Labor (DOL) the authority to determine the class of workers that fall within this white-collar exemption and are therefore ineligible for overtime pay. Through its implementing regulations, the DOL set a minimum salary as one factor for determining whether an employee is subject to the white-collar exemption. The DOL has since updated this salary threshold multiple times, although not sufficiently, to reflect changes in wages, and courts have afforded DOL Chevron deference in exercising this authority.4  

If Chevron is overturned, it would open the floodgates to litigation against scores of agency rules and regulations. Overturning Chevron would likely also cause agencies to refrain from expansive interpretations of Congress’s directives from fear of additional lawsuits. 

Black and brown communities would bear the cost of deregulation. Removing key regulations that protect the public would hurt all Americans, but especially Black and brown communities. Black and brown communities feel the effects of systemic racism in the form of exposure to harmful air pollutants,5 housing segregation,6 credit discrimination,7 and more. Removing regulations will make already vulnerable communities more exposed to exploitation by corporations and other institutions. Conservatives have already made clear that removing anti-discrimination regulations and programs that address racial equity is a top priority.8 Overturning Chevron deference would bring us one step closer to allowing the far-right to achieve that reality.  

Courts could replace agency expertise with their own policy preferences. By overturning Chevron deference, the Supreme Court would seize policymaking power from the executive branch and Congress, upsetting the balance of power between the three branches. While this is a problem in any political climate, the situation is even more disturbing given the far-right takeover of the federal judiciary. The least democratic branch would be able to sidestep both Congress and agencies to enact their own policy preferences, even where agency action accords with congressional intent.  

Cases decided by the legally dubious “major questions doctrine” signal what a post-Chevron world could look like. The major questions doctrine holds that agency regulations that implicate matters of “vast economic and political significance” require “clear” congressional authorization for the agency to act, simply because of their novelty or impact. This “doctrine” is not based in legal precedent and effectively works to bypass Chevron deference.9 The Supreme Court’s ultraconservative supermajority used the major questions doctrine to strike down the Centers for Disease Control and Prevention’s eviction moratorium,10 slash an Environmental Protection Agency regulation protecting wetlands,11 and overturn President Biden’s student loan forgiveness program.12 In each case, the Court claimed Congress did not provide “clear” authorization despite the pertinent statutes giving agencies broad authority to take the actions they did. If Chevron deference is overturned, we could see similar rulings in cases challenging any agency regulations. 

There would be a clear path to advance conservative, regressive policy agendas. Corporations and conservative stakeholders have fought to increase their profits by removing critical regulations that require companies to prevent pollution, provide for workplace and consumer safety, bargain with unions, and more. The Center for American Progress noted that if Chevron deference is overturned, many federal regulations would be at risk of being challenged, including those that ensure every student receives a high-quality education, prevent patients from receiving unfair surprise medical billing, or protect consumers from excessive credit card fees.13 Additionally, in amicus briefs filed in Loper Bright and Relentless, far-right organizations foreshadowed plans to challenge regulations around abortion and contraceptive access.  

Where organizations stand on overturning Chevron deference  

Organizations across issues and ideology are mobilizing around the agency power cases due to their far-reaching effects. Here’s how different interest and advocacy groups are siding on this issue.  

The power behind the challenge to Chevron deference 

"There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin." 
– former Trump administration White House counsel Don McGahn 

Corporations and conservative megadonors led the behind-the-scenes push to align conservative ideology on administrative power and ensure like-minded ideologues would decide key administrative cases that could weaken federal agencies. Conservative megadonors and conveners like the Koch network and Leonard Leo have been critical to moving the overturning of Chevron deference from a fringe issue to a conservative litmus test. This push is part of a decades-long conservative strategy33 that includes: 

Developing Infrastructure for Conservative Takeover. After liberal legal victories in the 1970s, the U.S. Chamber of Commerce commissioned the “Powell Memo,” a document written by future Supreme Court Justice Lewis Powell on how business could reassert corporate dominance in American politics.34 In the memo, Powell called for corporate interests to take a more aggressive role in politics, the judiciary, the media, and schools by building organized infrastructure and nurturing a network of like-minded ideologues.35 The conservative movement’s megadonors implemented the recommendations on judicial and legal strategy swiftly, leading to the creation of a network of conservative litigation groups and think tanks, and the Federalist Society, a highly influential conservative legal organization that trains and vets a pipeline of young conservatives for federal judgeships. The Koch network and Leo’s non-profit organizations, in addition to corporate funding, are an outgrowth of this strategy.  

The Koch network, in particular, has worked behind the scenes for years to overturn Chevron, and are behind many of the lawsuits attacking the EPA and other regulatory agencies. The Guardian reported senior Koch operatives held an internal discussion in the summer of 2022 on attacking the "administrative state,” underscoring how the ultraconservative supermajority created an opening for a coordinated attack on federal agencies. A strategist at Americans for Prosperity, one of the Koch network’s main advocacy arms, emphasized, ”That’s why we are partnering with organizations that can get the right cases to the Supreme Court.”

Weaponizing the Courts for De-Regulation. The Powell Memo also spawned a decades-long movement to pack the federal judiciary with ultraconservative ideologues.36 By packing the courts, conservatives hoped to seize a powerful venue for achieving policy goals, including deregulation of the economy. These efforts accelerated during the Trump administration. Aided by Senator McConnell and a willing Republican Senate, Trump heavily prioritized judicial appointments. Questions during the judicial confirmation process specifically focused on nominees’ views on federal agency authority.37 In all, Trump nominated more than a quarter of all active federal judges including 54 federal appellate judges and three Supreme Court justices, resulting in the capture of three Circuit courts and solidifying the Supreme Court’s ultraconservative supermajority.38 The Trump judiciary has already delivered devastating rulings, including overturning Roe v. Wade.  

The Koch Network

The Koch network is one of the most influential organizations in American politics. Built off the political activities of brothers Charles and David Koch, the network is a tightly coordinated group of organizations focused on achieving libertarian-minded policy goals like deregulation and lowering taxes. In addition, the Koch network is highly involved in both bringing lawsuits before the federal judiciary as well as getting like-minded conservatives onto the federal bench.39 The Koch network affiliates are representing plaintiffs in Loper Bright and Relentless, and several Koch-funded entities filed amicus briefs in those cases.

• Loper Bright: The plaintiffs are represented by Cause of Action (COA), a member of the Koch network. In 2021, all of COA’s funding came from Stand Together, a Koch network funding group, and COA shares the same office suite as other Koch groups, including AFP. Eric Bolinder, an attorney at COA and AFP, was a panelist at the 2022 Koch discussion. 
• Relentless: Plaintiffs in the Relentless case are represented by the New Civil Liberties Alliance (NCLA), an organization founded solely to combat the administrative state. The Charles Koch Foundation provided initial funding for NCLA in 2017 and has since contributed more than $3 million to the organization Several Koch-funded entities filed amicus briefs in support of overturning Chevron, including the US Chamber of Commerce, The Buckeye Institute, Cato Institute, Competitive Enterprise Institute, New Civil Liberties Alliance, Manhattan Institute, and Pacific Legal Foundation.

Leonard Leo

A powerful figure in the conservative legal movement, Leonard Leo has led several organizations and campaigns to support conservative judicial nominees and policy goals. Additionally, Leo advised several Republican administrations directly on federal judiciary nominations and is a former vice president of the Federalist Society. As Supreme Court advisor, to former President Donald Trump, he helped shepherd the selections and confirmations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. His organization Judicial Crisis Network spent $37 million to support confirmation of Trump administration Supreme Court nominees.40 One of Leo’s organizations is funding a plaintiff in Relentless as well as several amici filers. Clarence Thomas is a godfather to one of Leo’s children.41

In addition to his work to support judicial nominations, Leo’s organization Concord Network is a major funder of conservative organizations, including New Civil Liberties Alliance, the organization behind the Relentless case. Concord Network also contributed over $1 million to the Republican Attorneys General Association—whose members all signed an amici opposing Chevron and individually brought many cases opposing agency regulations—and Advancing American Freedom, a conservative advocacy group founded by Mike Pence whose advisory board is full of right-wing operatives. 

Corporations

America’s biggest corporations are large contributors to many of the groups behind deregulation and court packing. For example, ExxonMobil alone has contributed millions of dollars to the US Chamber of Commerce Foundation, in addition to large donations to the Federalist Society and amici filers Cato Institute, Competitive Enterprise Institute, Landmark Legal Foundation, Mountain States Legal Foundation, and Pacific Legal Foundation. 42 Numerous trade organizations that represent, and receive funding from, all corners of industry are also weighing in. Of the 32 trade associations that filed briefs in these cases, 28 of them supported overturning Chevron.43

Efforts to erode rights and protections combined with the consolidation of corporate power further exacerbate the ability of Black and brown communities and other impacted groups to secure economic mobility and security.  

Supreme Court divided on federal agency power 

Overturning Chevron deference would follow in the path of recent Supreme Court decisions that benefit corporations over people and shift power from federal agencies to the federal courts. Under Chief Justice John Roberts, the Supreme Court has become the most business-friendly court of the past century.44 The Roberts Court has systemically dismantled democratic and economic laws and institutions protecting the public interest, including by weakening the National Labor Relations Board (NLRB) and worker’s rights,45 hamstringing the Environmental Protection Agency’s enforcement of the Clean Water Act46 , and deregulating campaign finance laws to allow unlimited dark money to flow into our elections.47 In recent years, the Court has also led the use of the major questions doctrine to overturn key Biden Administration rules—a worrisome sign of the justices’ views on agency deference.  

Here’s how the two Supreme Court blocs are thinking about Loper Bright and Relentless: 

The ultraconservative supermajority is ready to act. During oral arguments, the six ultraconservative justices showed a willingness to overturn, or at least significantly weaken, the current system. Despite his initial support for Chevron deference—notably drafting the majority opinion in Brand X expanding Chevron deference in 2005—Justice Clarence Thomas has since flipped on the issue. In 2020, he wrote in a dissent, “Although I authored Brand X, ‘it is never too late to ‘surrende[r] former views to a better considered position.’”48 Given the extensive documentation of his Koch network connections and other conservative donors,49 Thomas’s disavowal of his previous Chevron stances raises serious questions. In the years since the Brand X ruling, Thomas was invited several times to the network’s exclusive summits as a featured guest.50 While these ties would usually be grounds for recusal, the Supreme Court’s lack of a binding ethics code means recusal standards are up to individual justices to adhere to.51   Unsurprisingly, Thomas chose not to recuse himself in this line of cases. Justices Neil Gorsuch and Brett Kavanaugh are also noted opponents of Chevron deference. As an appeals court judge, Gorsuch’s repudiation of Chevron deference was one reason Trump nominated him to the Supreme Court.52 During oral arguments, Kavanaugh claimed Chevron “ushers in shocks to the system” when Presidential administrations changed.53

Some of the justices also considered limiting deference to agencies without eliminating it completely. For her part, Justice Amy Coney Barrett questioned whether overturning Chevron could invite “a flood of litigation” seeking to overturn previously settled regulations, which could overwhelm the courts.54 And Roberts floated ruling the cases narrowly by deciding only if fishing companies are required to fund observers.55 The justices also considered limiting deference to agencies without eliminating it completely. 

The liberal justices remain committed to upholding Chevron deference. During oral arguments, all three liberal justices showed a willingness to uphold Chevron deference. Justice Kagan highlighted hypotheticals where agency experts were best equipped to craft policy over judges, including drug approvals under the Department of Health and Human Services or emerging artificial intelligence issues.56 She said, “It's best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations. Judges should know what they don't know.”57 Justice Jackson noted concerns over courts participating in policymaking should Chevron be overturned, saying, “I’m worried about judges and courts becoming uber-legislators.” 58

What’s Next 

While our current regulatory system may not be perfect, the powers seeking to dismantle it are only interested in advancing a regressive, corporate agenda. If Chevron is overturned, or significantly narrowed—as is likely—the path will be clear for legal challenges to countless regulations that protect the public from corporate greed and ensure our rights are upheld.  

In addition to Loper Bright and Relentless, the Supreme Court is hearing several more cases this term that could severely weaken agency power. Corner Post Inc. v. Board of Governors of the Federal Reserve System could lead to an avalanche of challenges to agency rules and regulations. In Securities and Exchange Commission v. Jarkesy, the Court could rule administrative law judges unconstitutional, threatening the enforcement abilities of the NLRB and OSHA. At stake in CFPB v. Community Financial Services Association of America, Limited (CFSA) is the very existence of the Consumer Financial Protection Bureau. These cases are not before the Court by happenstance—they are the culmination of a concerted, relentless strategy by the far right.  They also demonstrate the consequences of a politically captured court and exemplify why we have repeatedly called on Congress to enact meaningful reforms to stop the far-right takeover of the judiciary.