Getting rid of Chevron? Be Careful What you Wish For

While unlikely to draw the level of attention given to abortion rights, the Affordable Care Act, and affirmative action, the status of the “Chevron doctrine” is, to many, a crucial consideration for and against the confirmation of Judge Brett Kavanaugh’s nomination to the Supreme Court. The Chevron doctrine gives regulatory agencies substantial discretion to decide what they can do under the laws that define their authority. Perhaps the most relevant Supreme Court Chevron-related opinion these days is National Cable Television Association v. Brand X, decided in 2005. “Brand X” was a generic name for firms that wanted to offer broadband service by using facilities owned by the existing cable operator at regulated wholesale access prices, not by building their own facilities. As with Chevron, the real respondent was the regulator, in this case the Federal Communications Commission. The majority found that the Telecommunications Act of 1996 was sufficiently vague that the FCC could classify broadband as either a telecommunications or, as it did at the time, an information service. Here again, Chevron deference to the regulator led to an arguably procompetitive and certainly deregulatory outcome.

Undoubtedly, one can imagine circumstances where agencies interpret vague statutory provisions in ways that limit rather than advance market-like outcomes and economic efficiency. And certainly, respecting the constitutional division of governmental labor between legislative, executive, and judicial branch warrant some if not primary consideration in the debate over the Chevron doctrine. But those who want to get rid of Chevron to limit regulatory aversion to markets should look at the record and think again.