Meyer: Zooming out, what does this mean for Chevron deference broadly? Is it possible that this actually has bigger implications for the rest of the Biden administration’s ability to do ambitious stuff with agencies, even more than it does for the EPA?
Wara: I think it does. One of the most striking things about this decision is the majority doesn’t even mention Chevron in the decision. It’s not on the agenda. They are taking a much more activist and skeptical view of how creative agencies can get using the statutes they have to address the problems they confront today, as opposed to the problems that were imagined by Congress who knows how many decades ago when the legislation was passed.
In this Court, we are in a new world when it comes to agencies coming up with new approaches or using the power they have to address new problems. And this case is definitely going to stand, alongside a bunch of other cases that have been decided this term, for that principle.
The hard thing is going to be predicting when this new body of administrative law, this major-questions doctrine, is going to apply and when it isn’t. Because Chevron is still the law under normal circumstances. But the question is, who decides what’s normal and what isn’t? And I think that one of the major criticisms of this approach is that basically that’s left to the Supreme Court, and it’s normal when they think it is, and it’s “extraordinary” when they think it’s extraordinary.
So you’re left kind of guessing what the Court thinks. And it’s not rooted in a particular theory of constitutional law. I think it’s really unclear where the boundaries of this new kind of administrative law are, and the Court has not made much of an effort to articulate them.