The Conversation Within the next six weeks, the Supreme Court is expected to render its decision in the consolidated cases Relentless Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. The justices are expected to rule that Chevron remains good law or, if not, to provide guidance on whether and when courts should defer to federal agencies on their regulations. Attorneys and other commentators are weighing in on what diminution or elimination of Chevron deference would mean for the vitality of these agencies and their rules. Retired Supreme Court Justice Stephen Breyer, who applied Chevron deference during his years on the bench, wrote in his recently published book "Reading the Constitution: Why I Chose Pragmatism, Not Textualism" that the long-held deference standard provides "a flexible and workable understanding of the ‘judicial Power’ [which] includes the ability to defer to the reasonable interpretations of agencies on matters that Congress intended to assign to their domain of expertise.” Retired Judge David Tatel, of the D.C. Circuit, has bemoaned the potential demise of judicial deference to the expertise of agencies. "As the world keeps getting more complex, we need expert agencies more than ever," Tatel said recently. "Anyone concerned about the environment or with safe medicines or unadulterated food or cars that drive safely has very good reason to worry about where this Supreme Court is headed.” But John Vecchione, the counsel of record for Relentless Inc. in the Supreme Court, called the Chevron deference doctrine "deeply flawed" and constitutionally verboten. "Chevron directly interferes with judges' Article III duty to apply their own independent judgment when saying what the law is," Vecchione wrote in papers filed with the justices. "The Constitution makes judges independent of the political branches precisely because their core function—exercising judgment as to the meaning of legal rules—is fundamentally distinct from making policy choices," he added. "Chevron traduces these principles: It compels courts to abandon their own independent judgment and interpret ambiguous statutes by instead deferring to the agency's policy-driven assertions of what the law should be." However, not all believe the demise of Chevron would cause a major shift in regulatory enforcement. Attorneys Michael Lotito, of Littler Mendelson and Randel Johnson, of Cornell Law School, recently wrote that, regardless of Chevron's fate, "the administrative state will grind on at the enforcement level, where the regulated citizenry most often bumps up against the awesome power of government. Indeed, whatever the Supreme Court decides, perhaps little will change at the ground level of day-to-day enforcement activities." | 