The dangers of Chevron deference and the COVID-19 pandemic

The dangers of Chevron deference and the COVID-19 pandemic

Chevron deference, or the legal principle that the federal courts exercise deference to agency interpretations of laws and regulations, is a controversial practice that accumulates vast amounts of unconstitutional power in the federal bureaucracy. Indeed, it moves control of the government further and further away from the people.

In this coming Supreme Court term, however, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. will be squarely confronted by the case of Loper Bright Enterprises v. Gina Raimondo. This case challenges the secretary of commerce’s authority to require that commercial fishermen allow a federal inspector to stay aboard their vessel while at sea to monitor their compliance with federal laws and pay his salary for doing so.


Luckily, the Supreme Court has an opportunity to overturn both this misguided policy and Chevron deference. Congress makes laws, not government agencies.

My organization, the American Cornerstone Institute, recently submitted an amicus (or “friend of a court”) brief to the Supreme Court in the hope that our argument will help the justices reach a decision based on the nation’s founding principles. In our brief, we highlight just a few of the myriad examples of government excesses, overreaches, and abuses in the name of “expertise” during the COVID-19 pandemic. Consider a few examples.

  • In 2021, the Centers for Disease Control and Prevention published a new rule that required everyone to wear a mask while traveling anywhere within the United States on planes, trains, or other ride-sharing services. This rule was published without the public comment period required by the Administrative Procedures Act and was vacated by a district court 14 months later for overstepping the CDC’s authority.
  • The Department of Labor mandated a COVID-19 vaccination for wide swaths of the nation’s workforce, requiring 81 million people to either receive the vaccine or be removed from the workforce. This mandate was eventually withdrawn after the court made clear that it exceeded the agency’s lawful authority.

These pandemic overreaches happened at the state level, too. Our brief cites local officials who:

  • Banned solo outdoor walks in the state of Massachusetts.
  • Prohibited “non-essential” travel on foot, bikes, scooters, and vehicles in Los Angeles.
  • Required everyone above the age of 5 to wear a mask both indoors and outdoors in Massachusetts.
  • Banned multifamily gatherings and recreational sporting events of any size in Vermont.

All of these actions, executed without congressional authorization, should be unimaginable in America. Of course, all of this wasn’t just an inconvenience — the lockdowns and associated measures took a major toll on the people, too.

The COVID-19 pandemic and the response by our officials was a textbook example of why our Founding Fathers structured the Constitution and our republican system of checks and balances the way they did. They understood human nature, and they realized that no one person should be trusted to make the laws, enforce the laws, and interpret the laws all in one.

The Chevron doctrine turns this concept on its head and hands unelected and unaccountable agency bureaucrats the power of all three branches of government. Such an accumulation of power intrudes on our liberty and can lead to real-world negative consequences. We hope that our amicus brief offers the justices some important perspectives to help guide their decision.


Dr. Ben Carson serves as the founder and chairman of the American Cornerstone Institute .