Like taxes, regulations impose enormous costs on consumers, families, and businesses. Unlike tax policy, elected officials — therefore, voters — have little input into how these rules are shaped. And, for the last 40 years, Americans had limited ability to challenge federal regulations in court.
Until now. As IHS alum and New Civil Liberties Alliance President and Chief Legal Officer remarked, “The dismantling of the unlawful administrative state has begun.” That is because, on July 9, 2024, the U.S. Supreme Court issued a landmark decision in Loper Bright Enterprises v. Raimondo.
Loper Bright overturned Chevron deference, a doctrine put into place by the Supreme Court in the mid-1980s that made it more difficult to challenge agencies when they imposed costly regulations on consumers, families, and businesses. As one might expect, as the years wore on, agencies became more and more active. Even though the U.S. Constitution only allows Congress to make laws, unelected bureaucrats were allowed to interpret statutes in ways that allowed them to pile on administrative rules.
As the erosion of economic liberalism became apparent, IHS scholars stepped in, providing the research and legal arguments needed to overturn Chevron.
IHS alum piloted legal case against Chevron deference
Chenoweth and NCLA led one of the lawsuits that resulted in the Supreme Court’s July 9 decision. NCLA became involved in the case while working with fishermen from Point Judith, R.I. who were challenging a federal rule that required them to essentially pay the salaries of federal agents who monitored their at-sea operations. These monitors had been riding with the fishermen for more than a generation. The fishermen paid for the monitors’ meals, but, until this new rule, the federal government had never assessed other fees.
The regulation would have cost the fishermen $700 a day, drowning their small businesses.
The NCLA argued Congress never gave the executive branch the right to impose such a fee.
Citing Chevron deference, the U.S. First Circuit Court of Appeals ruled against the fishermen. It determined the broad “necessary and appropriate” language in the Magnuson-Stevens Act, which governs U.S. fisheries, augmented the executive branch’s regulatory power. The fishermen, Chenoweth, and NCLA appealed, and that case became part of Loper Bright.
For his entire career, Chenoweth has been a champion of the principles and practices of freedom, and compelled to defend them. He first connected with IHS in 1994 at a program exploring the merits of free market economics. In 1996, he attended a summer seminar for students. One year later, he and his fellow summer seminar attendee, James C. Ho, now a judge on the U.S. Fifth Circuit Court of Appeals, founded the University of Chicago’s Institute for Justice Clinic on Entrepreneurship, a free public interest law firm and lifeline for small businesses in need of legal advice.
Now, as president of the nonpartisan NCLA, Chenoweth and his team work to protect the rights of the American people from abuses of the administrative state.
Chenoweth spoke at an August 2024 IHS webinar after the Loper Bright decision. “I probably wouldn’t be doing what I’m doing today if it weren’t for my introduction to, and involvement, with IHS,” Chenoweth said. “I was mentored by Richard Epstein, someone else who has been involved with IHS over the years. To this day, Marty Zupan [IHS president emeritus] sits on our board at NCLA.”
Chenoweth is only one of dozens of IHS scholars who provided the intellectual firepower to turn back Chevron deference.
Investigating the intellectual underpinnings of Chevron
Institute for Humane Studies events have been a regular gathering place for scholars curious about Chevron deference. The most notable event was a 2020 Academic Research Symposium exploring the power of the administrative state. Case Western University Reserve Professor of Law Jonathan Adler spoke at that event. His remarks addressed Chevron and asked what a future without it might look like.
Scholars like Adler had spent years determining exactly what Chevron deference was, whether it was constitutional, and what its implications were.
Initially, Chevron’s proponents saw the doctrine as a check on federal judges attempting to make policy from the bench. The doctrine failed in that regard. Adler noted that, in one of his last concurrences in a case, the late Justice Anthony Kennedy argued lower courts had used Chevron as an excuse to abdicate power to federal agencies.
Adler also challenged the notion that federal courts could cede this much power to federal agencies when they had no explicit lawmaking authority under the U.S. Constitution. This argument was cited by Chief Justice John Roberts in cases leading up to Loper Bright that also had challenged Chevron deference.
Specifically, Roberts cited an article Adler wrote with George Washington University law professor Nathan Sales that articulated why courts should not understand silences in statute as delegations of power. “Nathan and I argue it would be wholly inappropriate to defer to an agency when the question is the scope of [that agency’s] own power,” Adler explained at IHS’s August 2024 webinar. “This argument was significant because it meant Chevron as it was operating was not even constrained within the theoretical bounds of the underlying theory.”
Adler has been involved with IHS for more than 30 years. In 1990 and 1992, he participated in IHS’s Felix Morley Journalism Competition. Thirteen years later, he served on the competition’s review committee. In 2022, Adler participated in a colloquium on pollution that produced a book called Climate Liberalism.
In the August 2024 webinar, Adler praised other IHS scholars for their work on Chevron deference, including NCLA CEO Phil Hamburger who has argued Chevron deference is just one of several problematic doctrines that allow federal agencies to change the meaning of the law without legislative intervention. Adler noted other IHS scholars have explored how, in practice, Chevron contradicts other important legal values, including due process.
“The confluence of these and other strains of scholarship made it easier for the Supreme Court to recognize that Chevron, in practice, was not fulfilling the role its proponents had seen for it,” Adler said. “Academic scholarship facilitated that evolution.”
Loper Bright amicus briefs cited more than four dozen IHS scholars
One of the most unique benefits of engaging with IHS is the chance to converse with scholars from across disciplines. While lawyers and economists do not frequently co-author or cite one other, IHS offers scholars an opportunity to learn about each other’s work and collaborate.
As illustrated by Adler’s experience, IHS supported the community of regulation-focused scholars through symposia and other events. The impact of this collaboration was clear in amicus briefs submitted to the Supreme Court in Loper Bright. Forty-nine scholars from the IHS community were cited 115 times by 41 amicus briefs. These briefs are essential, informing the court’s nine justices on key points of the law, history, and economics and helping justices understand how an issue affects individuals, groups, or industries.
From 1998 to 2024, IHS held 67 events attended by at least two or more of the scholars cited in Loper Bright amicus briefs.
As with Chenoweth and Adler, IHS also provided early career mentorship and support, along with connections to members of IHS’s faculty network through programming, to 10 of the scholars cited in amicus briefs. Those scholars include Associate Professor of Economics at Providence College James Bailey who received IHS mentorship and has participated in dozens of IHS events since 2011 examining how regulation impacts entrepreneurship. Amicus briefs also cited Judge Neomi Rao, now a judge on the Court of Appeals for the District of Columbia Circuit. Rao was an IHS fellow in 1998 and 1999. She also participated in an IHS research workshop that helped her produce a 2011 article explaining how constitutional courts conceptualize dignity.
“This mountain of scholarship was hugely influential to the outcome in Loper Bright,” Pacific Legal Foundation Senior Legal Fellow Will Yeatman said during IHS’s August 2024 webinar. “We get superior jurisprudence when the judges or justices are informed by scholarship.”
Economic liberalism seeks to limit unnecessary government interference in markets — through taxes, regulations, and more — so people are free to innovate, produce, and exchange with others. For decades, IHS has supported scholars studying regulation in order to advance economic liberalism. The Supreme Court’s decision in Loper Bright is just one example of how that work will reduce costs for American consumers, families, and businesses. As Chenoweth told the IHS community during the August 2024 webinar, when it comes to watershed decisions like Loper Bright, “The arguments you raise matter. Scholarship matters.”
By supporting IHS, you invest in scholars at a formative stage in their careers. Not only with crucial financial support, but with inspiration and connections to other like-minded and driven intellectual collaborators that they can’t find from any other funder.
