Down With the Ship: How Chevron’s Demise Could Threaten Election Law

By Owen Hannon ‘27

Law is not an automated system narrowly shaped by one exogenous force. Rather, it is a semi-closed circuit whose design is susceptible to extrinsic influences and endogenous developments. To evaluate what the law is, one must assess who writes it. This burden falls upon both the external legislator and the internal judge. Political movements that successfully yield legislative change within one policy sector can spread to others; doctrinal changes in one legal arena can spark schismatic shifts across the entire academy. The nexus between administrative and election law proves no different.

In May of 2023, the Supreme Court granted certiorari to a challenge from fishing companies to a rule issued by the National Marine Fisheries Service that requires fishing boats to fund and carry their own monitors, but is silent on the funding mechanism. (1) The case is ripe to reconsider 1984’s Chevron v. National Resource Defense Council. The long-standing doctrine is directly chastised in the petitioner’s brief after all.

Chevron instructs courts to defer to an administrative agency’s “reasonable interpretation” of an ambiguous statutory mandate. (2) Chevron is the lifeblood of administrative governance. Not only does it grant bureaucratic leeway, Chevron also implicitly rebuffs the anti-administrative “unitary theory of the executive.” This fringe conservative legal argument interprets the Vesting Clauses of Articles I and II: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” and “The executive Power shall be vested in a President of the United States of America.” Per unitarians, all legislative power must be wielded by one Congress – not an administrative agency whose promulgated rules have the effect of federally binding law – and all executive power by one executive. Article I does not contemplate extra-congressional policymaking, and Article II does not contemplate a privy council. There is to be one Congress and one presidential character, not a shadow “deep state” subverting their wills.

Should Chevron be overturned, one might anticipate three ramifications for election law: further attenuation of federal voting rights legislation, deterioration of democratic functions at the normative level, and additional defiance of stare decisis that threatens precedent everywhere in the legal canon.

First, consider imminent statutory complications. Chevron’s logic has been vitiated in the election law space before. Take, for example, 1995’s Miller v. Johnson. After gaining an eleventh congressional seat in the 1990 Census, the Georgia General Assembly only drew one majority-minority Black district to represent the state’s 27% Black population. The Justice Department instructed the General Assembly to draw a second majority-minority district, which challengers derided as a “geographic monstrosity” because it extended over 260 square miles. The Court struck down the second district and submitted race-based redistricts to strict scrutiny. Integrant to the rationale was an extension of Shaw v. Reno’s “expressive harms” theory – a proscription on state action that expresses negative attitudes towards suspect groups – to all state residents, including white ones. In other words, Miller broadened the scope of equal protection injuries for white residents, a bona fide enervation of race-conscious redistricting schemes.

In his Opinion of the Court, Justice Anthony Kennedy ruled that the Clinton Civil Rights Division’s goal of “maximizing descriptive representation of African Americans” was “not required by the Voting Rights Act under a correct reading of the statute.” (3) It was improper for the Court to defer to the statutory interpretation of the Department of Justice; the onus was on the judiciary to supply its own. Chevron’s death knell tolled years ago, putting voting rights protections on the line. If Chevron were overturned in toto, with no persistence of precedential weight, the war on statute would rage on.

Second, consider democracy at the normative level. Overruling Chevron would erode the democratic spirit that progressive election law seeks to protect. Bureaucracy is not categorically anti-democratic because there is a difference between substantive and procedural democracy. Indeed, the administrative state is not accountable through majoritarian means. Since 1883, civil servants have been staffed by virtue of their technocratic, meritocratic, and knowledge-based experience – not patronage – and are largely irremovable by elected figures like the president. (4) And while it may be true that Congress institutionalizes the bureaucracy through organic statute and the Cabinet is constitutionally beholden to Congress instead of the president, administrative promulgation does not follow democratic procedure.

Conservative legal scholars find it more normatively democratic to nix Chevron, force Congress to expressly enumerate agency duties, and keep the legislative role in an elected chamber. This interpretation, however, is not nuanced. An institution may be procedurally anti-democratic but protect democracy at the substantive level. Strains of Jeffersonian and Tocquevillian political thought see monarchy and pure democracy as constituent parts of a still democratic body politic. (5) Insulating the president from the institutional presidency inhibits him from 1) folding the entire executive apparatus into a tool for self-aggrandizement and 2) subverting the will of the more immediately democratic Congress. Furthermore, reversing Chevron would amount to congressional gaslighting: the Court would feign deference to Congress but ignore the fact that Congress delegated broad powers to the bureaucracy of its own volition. The Court, in other words, would cherry pick congressional action that it finds favorable. This hostile ideological environment would throw democratic norms in the crosshairs. Danger would lie ahead for election law.

Third, consider stare decisis, a guiding star in American jurisprudence. Stare decisis legitimizes the judicial process and encourages reliance on judicial decisions by making the development of legal rules predictable and evenhanded. While stare decisis is not an “inexorable command” and precedent is not infallible, the doctrine impels reaffirmation of past case law, even if it was wrongly decided. (6) From Dobbs to Students for Fair Admissions, this Court is eminently hostile to precedent.

But, worse yet, it has little interest in proffering a universal framework to determine when stare decisis should be trumped and precedent overturned. The “five factors” Justice Samuel Alito introduced in Dobbs to decide when cases should be overruled – “the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance” – applied specifically “in this case [Dobbs] in favor of overruling Roe and Casey.” (7) If the Court gerrymanders stare decisis standards on a case-by-case basis with preconceived holdings already in mind, subjective policy preferences will inevitably influence judicial opinions. The death of Chevron would only give credence to the thesis that all precedent is on the table. And Justices Thomas, Gorsuch, and Alito have signaled sympathy with fringe legal theories regarding election regulations, joining the dissent in Moore v. Harper to extoll the virtues of the independent state legislature theory.

Consider Benjamin Franklin’s wisdom: the American political system is a republic “if you can keep it.” The subtext is that revolutions can be undone. The Reapportionment Revolution is no different. Justice Thomas has beseeched the Court to reconsider its landmark cases on interracial marriage, anti-sodomy laws, and gay marriage. (8) Baker v. Carr could plausibly be next on the chopping block. What will happen to the American franchise one cannot know. But one thing is certain: this case is about much more than fishing boats.

Endnotes

(1) Amy Howe, “Supreme Court will consider major case on power of federal regulatory agencies,” SCOTUSBlog, May 1, 2023, https://www.scotusblog.com/2023/05/supreme-court-will-consider-major-case-on-power-of-federal-regulatory-agencies/. 

(2) Legal Information Institute, “Chevron deference,” Cornell Law School, https://www.law.cornell.edu/wex/chevron_deference. 

(3) Miller v. Johnson, 515 U.S. 900 (1995). 

(4) Pendleton Civil Service Reform Act, ch. 27, 22 Stat. 403 (1883). 

(5) James Caesar, “Presidential Selection: Theory and Development,” Princeton University Press, 1979, pp. 50. 

(6) Legal Information Institute, “Stare decisis,” Cornell Law School, https://www.law.cornell.edu/wex/stare_decisis. 

(7) Samuel Alito, Dobbs v. Jackson Women’s Health Organization 597 U.S. ___ (2022). 

(8) Clarence Thomas, Dobbs v. Jackson Women’s Health Organization 597 U.S. ___ (2022).