High profile lawsuits have attacked religious liberty in recent years, but the federal bureaucracy is another line of attack. The Supreme Court’s Loper Bright v. Raimondo (2024) decision should have an impact on this, however. In this decision, the Supreme Court overturned the earlier Chevron v. Natural Resources Defense Council, Inc. (1984) decision, which instructed courts to give deference (commonly referred to as “Chevron deference”) to regulatory agencies where there is ambiguity in statutes.
The need to overturn the Chevron decision was discussed by a panel at a Faith and Law forum on Capitol Hill on September 13. The panel took the implementation by the Equal Employment Opportunity Commission of the Pregnant Workers’ Fairness Act to establish an abortion mandate as an example of the problem of regulatory overreach exacerbated by Chevron deference.
The panel included Paul J. Ray of the Heritage Foundation, Rachel Morrison of the Ethics and Public Policy Center, and Laura Wolk Slavis of the Becket Fund for Religious Liberty, and was moderated by Amy Vitale, also of the Becket Fund.
Congressional Delegation of Power and Chevron Deference
Vitale remarked that although the general public usually isn’t interested in regulatory issues, these issues are still quite important for religious liberty. There are three stages in the lifecycle of a federal regulation, she said: first, the legislative proposal and enactment (contents, language, etc.), secondly, the regulatory proposal by an executive agency and public comments thereon, and thirdly, the lived reality. Conflict in the lived reality may result in litigation.
She observed that the Supreme Court said in the Loper Bright decision that Chevron deference is “unworkable and fundamentally misguided.” Courts had to decide between “ignoring court precedent or undermining the limits on Congressional delegation.”
Paul Ray explained the Chevron decision as having created the “Chevron two-step” for judicial review of regulatory cases – 1) Is the statutory text clear? If so, there is no further review – 2) If the text is unclear, then the court asks if the agency’s interpretation is “reasonable,” regardless of whether or not the court thinks it is “best.” Comparison of cases before and after the Chevron decision shows that courts were more likely to uphold a challenged regulation after the Chevron decision than before. The distance between “reasonable” and “best” was an area of agency discretion which had not existed before. The jurisprudential justification for the Chevron doctrine changed over time, Ray said. Ultimately the Supreme Court held that by using vague language in delegating regulatory authority to agencies, Congress was signaling its intent that agencies interpret laws since they have greater expertise than courts. However, in “public policy debates” Chevron was defended as a doctrine to prevent courts from overreaching their proper authority by reading their preferences into law.
The Supreme Court overruled the Chevron decision on the basis of the Administrative Procedure Act of 1946. It held that the courts should judge whether federal regulations correctly implement laws passed by Congress. Nevertheless, Ray observed, Loper Bright does not alter “open-ended” delegations – where the law says an agency should follow a standard of indeterminate meaning (e.g., “in the public interest”). Such standards are rhetorical, with no real meaning. Agencies may effectively regulate without regard to them.
Part of the rationale for the Chevron decision has been undermined by the rise of textualism (which focuses on the plain meaning of legal statutes). Textualism has succeeded to a significant degree in limiting judicial discretion. On the other hand, since 1984 “agencies are more likely themselves to engage in aggressive power grabs.” Ray attributed this to increased Presidential power over agencies since the Clinton Administration and public expectations that executive power will be used to accomplish what existing law cannot by itself accomplish.
The Problem of Regulatory Overreach
Rachel Morrison discussed the Pregnant Workers Fairness Act, and the way in which that law was twisted to advance an agenda that it was never intended to advance, namely that of abortion. The point in the law on which there was bi-partisan agreement was to help pregnant women in the workplace by requiring “reasonable accommodations” which would not be an “undue burden” on employers. This was something existing antidiscrimination law did not accomplish.
But there was concern that the Equal Employment Opportunity Commission would interpret the law to require abortion accommodations. These concerns resulted in the proposal in the House of Representatives for a religious accommodation in the PWFA. Legislators incorporated the religious accommodations provision of Title VII of the Civil Rights Act of 1964 in the PWFA. Against this, she said, it was claimed the religious protection language taken from Title VII only covered claims of religious discrimination, not conscience claims against abortion arising from religious commitments. Although the EEOC had a long-standing interpretation of the Pregnancy Discrimination Act to say that it prohibited discrimination against abortion, left-of-center legislators insisted that the proposed PWFA had nothing to do with abortion. Those who raised abortion concerns were said to be unconcerned about women.
But this, Morrison said, was a case of “nod-nod, wink-wink.” Everyone knew what the EEOC would do with the law, even though the legislation did not mention abortion. The EEOC has a history of pushing the law “where it wants it to be.” But the agency “does not have substantive rulemaking authority under Title VII” or under laws such as the PWFA insofar as they amend Title VII. EEOC guidance in these cases is not “legally binding.” But the PWFA itself does give the EEOC rulemaking authority, so that based on the PWFA, it can make “regulations that bind employers.”
Morrison observed that in the regulation EEOC did promulgate based on its interpretation of the PWFA, both contraception and abortion must be accommodated. Thus, in the case of contraception, the PWFA is applied to some women who have never been pregnant and may never be pregnant. She noted that in commenting on the proposed regulation, one Democratic senator who had insisted on the floor of the Senate that the PWFA did not cover abortion later agreed with the EEOC’s proposed regulation making the PWFA cover abortion.
Litigating against Regulatory Overreach
Laura Wolk Slavis said that legislators must be careful when they enact a law of the possible ways a “bad actor agency” might interpret it, issuing regulations that go beyond the intent of the legislation. She said that once a rule is promulgated, organizations whose consciences are threatened by the rule must “move very fast,” because as soon as the rule “goes into effect,” they will immediately have the choice of facing the penalties of non-compliance with the rule or violation of their consciences. In the case of abortion, a rule may require violation of “millennia old” religious beliefs. The injection that the Becket Fund sought against the EEOC regulation said that abortion has nothing to do with pregnancy or childbirth, “it is the antithesis of those things.” Abortion is not a “condition,” she said, “it is a procedure.” It is a procedure intended “to terminate the life of the unborn child.” Additionally, the EEOC rule violated the “major questions doctrine.” This doctrine says that a regulation involving major issues of public controversy must have “exceedingly clear” statutory justification, not merely the judgment of the regulatory agency. But the PWFA had no language at all referring to abortion.
Another area of regulatory overreach in EEOC’s interpretation of the PWFA, Slavis said, was its interpretation of the religious exemption taken from Title VII of the Civil Rights Act. What the statutory language actually says is that any action an employer takes on a religious basis is exempt from the PWFA. “Religion” is understood to mean what it means in Title VII, which is “all aspects of belief as well as observance or practice.” This means that “if an employer takes an action based on an individual’s beliefs, observance, or practice, that claim is exempt, it’s completely uncovered by the law.” Thus there is no need to accommodate abortion. But the EEOC interpreted the law in the “very narrow” sense that an employee may not bring an antidiscrimination claim on a religious basis. Yet the PWFA is not an antidiscrimination law, despite its religious accommodation language having taken Title VII’s language but has only to do with accommodating pregnant workers.
The judge who issued an injunction the day the regulation was to go into effect said that EEOC’s proposed regulation was a classic case of “regulatory overreach.” He agreed that abortion is a “procedure,” not a “condition,” and thus not covered by the PWFA (from which employers have a religious exemption in any case). He recognized that abortion was a highly controversial issue, not to be mandated from vague statutes. The PWFA’s history highlights, Slavis said, that “cautionary tales” about what an executive agency can do with a law show that laws should be carefully written.
Commenting on the burden of litigation, Vitale observed that the Becket Fund has been with the Little Sisters of the Poor in court after more than a decade. The Little Sisters suffered from the contraceptive/abortifacient mandate based on a bureaucratic interpretation of the Affordable Care Act (Obamacare). This shows that the federal government is an “absolute Goliath” that religious ministries may have to engage.
Ray said that there currently is a refrain that Congress should pass laws with general rules, which agencies with expertise in the relevant areas should then interpret. But he asked if Congress couldn’t inquire of agencies what they know before it formulates law. Executive agencies do not want statutes that are difficult to administer, and so they have “pretty strong incentives” to get back to legislators with questions about proposed legislation. Morrison said that agency heads can be called to account in Congressional hearings about laws that they implement. Slavis added that comments to a proposed rule are important. For the proposed EEOC regulation mandating abortion accommodation, 54,000 comments were submitted saying that the proposed regulation would “infringe religious liberty.” Comments can be useful in showing how an agency has departed from the text of a law.
Conclusion
Laws will continue to require federal agencies to make them apply to the situations of real life. Staffed by personnel who are interested in and believe in the area of public life that their agency addresses and are reasonably likely to feel that the government has a somewhat messianic role to play in the life of the nation, they may overstep the bounds of their agency’s authority. The Loper Bright decision will guard against this, with agencies aware that they face a more conservative judiciary both in the legal rules it will apply and the make-up of its judges. No particular arrangement of laws and institutions will guarantee religious liberty but overturning the Chevron decision will certainly help.
Comment by Tim on September 27, 2024 at 6:56 am
Nice job shoehorning abortion in, but it’s a fairly dishonest explanation of why Chevron was important and why conservatives wanted it gone.
We’ve left the era where there’s any legitimate debate about climate change, or forever chemicals, or other pollutants. Regulatory agencies acting in good faith rightly want to take action to protect vulnerable people (part of our call as Christians too, no doubt) but by removing their authority to do so the Supreme Court has sent the ball back to its allies in Congress who will ensure that nothing is done to protect us.
Comment by Different Steve on September 27, 2024 at 9:39 am
Like the Secret Service protected Trump? Like they protected East Palestine, Ohio? Like they protect the border? The list of failures and harassment by unelected and often unaccountable bureaucrats goes on and on. Incidentally, climate change is not beyond legitimate debate. (That word “legitimate” is doing some heavy lifting there.) Aren’t the ice caps supposed to have melted by now? Major cities underwater? Haven’t global temps actually gone down in recent years? Notice they (and you) don’t call it global warming anymore. Besides which, given China and India have been ramping up their enormous carbon emissions, how is denying ourselves carbon based fuels supposed to make much difference? And how about those ridiculous electric car mandates, where they mandated the end of ice engines by 2025 or something, that’s just completely falling apart and/or starting to destroy the auto industry?
Comment by Different Steve on September 27, 2024 at 9:53 am
MSM Journos Inadvertently Reveal Shocking Truth About Global Warming
https://www.zerohedge.com/weather/msm-journos-inadvertently-reveal-shocking-truth-about-global-warming
Comment by George on September 27, 2024 at 11:36 am
Thank you different Steve. I can’t add anything that would enhance what you laid out for us except for maybe these words, “we are from the government and we are here to help”.
Comment by MikeB on September 27, 2024 at 2:22 pm
Tim,
Yet again the church of Tim has proven itself to be a statist dictatorship that demands the complete adherence of the state to the flippant beliefs of Tim.
Christ said “My kingdom is not of this world”
Tim said “The government needs to force my beliefs on traditional Christians”
Comment by Tim on September 28, 2024 at 5:37 pm
Christ also said that it’s easier for a camel to pass through the eye of a needle for a rich man to enter the kingdom of God, but conservative Christians line up to defend policies that only benefit the wealthy (like repealing Chevron) because of our culture wars.
At best they’re like the Baptist preachers willing to take money from liquor stores in the next county over to promote keeping their own county dry. At worst, they’ve just convinced themselves that Christianity is about judging people and hating stuff and the Republicans are perfectly willing to build a coalition based on that.
Make no mistake: many people will die unnecessarily early because of the loss of Chevron. Some polluter will claim the EPA or the states have no jurisdiction to limit their pollution, and moneyed interests in the courts and congress will back that. Christians aren’t supposed to defend the powerful at the expense of the powerless.
Comment by MikeB on September 28, 2024 at 5:58 pm
Tim,
Wealth is between the rich man and God, it’s not up to you to take his money.
Christ was talking about what people treasure, for you it’s your pride. You refuse to give over to God you won’t pass through the eye of the needle. You refuse to give God the respect He you owe him, you make heretical statements about how you won’t judge or comment on people who think God is some female goddess, you think Homosexual actions are not sinful, you deny many verses of God’s word, lies travel from you to mislead.
You must defend the Word of God first and foremost. Love the Lord your God with all of your heart, mind and soul, and THEN love your neighbor as yourself.
It does people no good to live a happy sinful life free of pollution and then spend the rest of eternity apart from God due to their choices that you supported.
When you support them pursuing another god then you indeed help them condemn themselves. Their blood is on your hands.
Your desires of Christians is to shut up about defending their God, and support your desires.
The needle is far too small for what you want to shove through it.
Comment by Tim Ware on September 28, 2024 at 9:06 pm
While the underlying assumption of organized Christianity may be that it is not wealth per se that the New Testament condemns but only an over-attachment to it, there are not really any New Testament passages that support that idea. Jesus did in fact say, quite literally, that it is easier for a camel to go through the eye of a needle than for a rich man to enter the Kingdom of God. We may find all sorts of ways to interpret that to convince ourselves that, although Jesus really said that, that is not what He actually meant, but the fact remains that He did explicitly say it.
There are no New Testament passages that explicitly distinguish between good wealth and bad, although we may translate/interpret selected passages in such a way to allow ourselves to imagine that there are.
Clement of Alexandria may have been the first, or at least the first recorded, Christian leader who made a distinction between wealth and over-attachment to it. And then during the Reformation, which was a reinterpretation of Christianity away from the feudalistic interpretation of the RC Church and toward an interpretation more suitable for the emerging prosperous merchant class, that idea became ingrained in Protestantism.
But the fact remains that Jesus did say, “Woe to you who are rich.” Very plain, literal, with no wiggle room.
Strange how we can, when it suits us, de-emphasize or even interpret away a number of the literal sayings of Jesus.
Comment by MikeB on September 28, 2024 at 9:38 pm
TimW,
No one here said that wealth is good though there are verses like Luke 16:9 telling those with wealth to spend it on others.
The point is that it’s between the wealthy and God, as those who judge the wealthy while they preach no one can judge.
The whole word cannot be broken into little pieces where we only accept the ones we want to.
Comment by Tim Ware on September 28, 2024 at 10:05 pm
MikeB,
Consider this for a minute…in one of your replies to Tim, you stated, “Wealth is between the rich man and God.” In your reply to me, you stated, “It’s between the wealthy and God.”
If that is your viewpoint regarding wealth, then why is that not your viewpoint regarding Tim’s interpretation of Christianity? In other words, if the issue of wealth is between the individual and God, why do you not think Tim’s interpretation of Christianity is an issue that is between him and God?
I agree with you that we can’t just accept the pieces we want. I would add, though, that neither can we construct a version of Christianity out of 4 or 5 carefully selected verses of Scripture that we quote over and over again. We must take the entire scriptural witness into account, not only those verses and interpretations that jive with the particular sect we identify with, but also those that don’t jive with our favored sect.
Having said all this, though, I want to make one thing clear…I, along with you, agree that we do not need a bunch of faceless, unelected bureaucrats in government making rules for us.
Comment by MikeB on September 28, 2024 at 10:25 pm
TimW
I believe that we need to truthfully protect doctrine and the word of God.
That is a separate topic from demanding the government punish those I see as sinful or anything like that. I do not think it is the government’s job to use Christian scripture to take from the rich or punish homosexual behavior or pagans.
If a rich man came here and said his wealth made him more Godly you bet I would argue against that, we in the church like Paul repeats again and again have to stand for the word of God.
Doctrine is not a live and let live, you as well as I know that we must fight hersey, if we let the false shepards twist the saving truth of Christ then we allow salvation to be hidden.
But no once someone rejects Christ I think that’s between them and God.
But then if they try to lead others away we must keep to the word.
I am in no way perfect in theology or behavior, but I am saved, and I am commanded to follow Christ.
Comment by MikeB on September 29, 2024 at 12:41 am
TimW,
An example might help: You, Tim, and I are math professors at a college.
You and I are trying to solve one of Hilbert’s problems, we disagree on which approach is best. But we agree that 2+2=4 and on the general rules of math.
Tim says he does not judge those who say 2+2=5, and by the way he only believes in some multiplication non of division, and only some of geometry.
I do not think the government should imprison him or the 2+2=5 crowd, and I do not ask the college to expel him.
But in no way am I going to just shut up and let him tell student’s that it’s ok to think 2+2=5. I think that I owe it to the honest student’s to stand for what is factual about math.
When he says that or anything else that disagrees with the fundamental Nicean Creed or the Apostles’ Creed, then I will confront him that his new rules are indeed a different religion. Because I am not ashamed of the Gospel, because I would rather be badly thought of by man than not stand for my savior and his entire word. I may not be right about every doctrinal detail, but the basics are set in stone and I try hard and continue to grow in the word of God.
Because we need to be a witness for those who might hear him and be misguided. Because I retain hope that he himself might eventually realize the error of his ways.
Comment by Tim on September 29, 2024 at 8:57 am
Mike
There’s three main problems with your reasoning
1.) As TimW points out, you pick and choose Bible verses as much as anyone else. You misrepresented the eye of the needle verse and elsewhere you explain away the repeated command from God not to mistreat the foreigners living amongst you (which appears at least 4 times in the old testament) as “ancient Israel’s immigration policy.”
2.) I never called for taking away people’s wealth. I pointed out that repealing Chevron was a way of protecting the interests of the wealthy at the expense of the general good. You have pre-written arguments against things that you just plop in when you think they’re vaguely related.
3.) Where have I disagreed with the Nicene Creed?
Comment by MikeB on September 29, 2024 at 12:18 pm
Tim Tim,
Your willful dishonesty knows no bounds.
The eye of the needle matches the text, in no way does my interpretation mismatch scripture as a whole.
You completely missed my sarcasm which was about your determination to throw out the portion of the same chapter where they kill someone for violating the sabbath, and your decision that God no longer finds homosexual acts an abomination. Because you decided that Christians are unbounded by the Old Testament… except in ancient Israeli immigration laws? Sorry you missed the sarcasm of how hypocritical you were.
As for number 3, you’ve denied the right of God to judge the living and the dead, you have refused to acknowledge his just right to throw heretics and unrepentant sinners into hell as well as non Christians.
Do you deny that? Have I misread your words?
Comment by Tim on September 29, 2024 at 12:52 pm
Yes. You have completely misread my words. I’ve denied the right of YOU to judge the living and the dead, not God. For some reason you think you speak for God.
But this is also a typical tactic for you, because you’re trying to change the topic to be about my faith. My comment was that repealing Chevron is an example of using state power to benefit the wealthy at the expense of the powerless. Furthermore, I made a faith based argument that this isn’t the sort of thing Christians ought to support. Do you have any useful comments relating to that?
Comment by MikeB on September 29, 2024 at 4:12 pm
Tim,
Dodge all you want, you hide your true beliefs, what do you think happens to those who do not believe in Christ.
You go out of your way to side step this. You seem to judge me as being judgemental, which is strange strange coming from one who says he does not judge…
Comment by Different Steve on September 29, 2024 at 6:06 pm
The end of Chevron deference is no game-changer. Here’s why.
https://thehill.com/opinion/judiciary/4768549-supreme-court-decision-chevron/
In reality, the end of so-called “Chevron deference” changes little.
Lower courts previously ruled in the agency’s favor under the Chevron doctrine, which stipulates that courts should defer to executive agencies’ interpretations of ambiguities in the laws it applies, so long as the interpretation is “reasonable.”
In overruling Chevron, the Supreme Court now holds that judges must independently interpret the law and can only automatically defer to agency interpretation where Congress asks them to.
Theoretically, agencies and bureaucrats must now work harder to persuade courts that they have applied the law correctly and to contest alternative interpretations from judges, plaintiffs challenging executive actions and experts outside the agency.
Comment by Different Steve on September 29, 2024 at 6:10 pm
The end of Chevron deference isn’t the end of regulation
https://thehill.com/opinion/judiciary/4760351-chevron-deference-immigration-policy/
Despite the Chicken Littles, however, the administrative state will live on. None of the 439 executive and independent agencies has disappeared.
Agencies will still be able to regulate. Nothing in the court’s ruling declares that agencies may no longer interpret the law or that they cannot go beyond the explicit words of a statute. Agencies can and should continue to use their expertise and judgment to faithfully execute the law.
Comment by Tim Ware on September 29, 2024 at 10:03 pm
Tim,
Regarding your comment to MikeB about his interpretation of Old Testament laws about treatment of foreigners:
This is not selective explaining away on MikeB’s part. There is a widely-accepted idea within Evangelicalism that says there are three classes of Old Testament laws–ceremonial, civil, and moral. According to this idea, Christians are obligated to follow only the moral laws. Treatment of foreigners would be classified as civil, thus not binding on Christians.
We may or may not agree with the three classes of laws idea (I personally have a completely different view of Old Testament interpretation), but the point is that it is not selective interpretation on MikeB’s part. It is simply following a widely-held, sincere belief within Evangelicalism.
So your argument is not with MikeB, it is a disagreement about Old Testament interpretation. And you know, there are many different ways of interpreting the Old Testament, all of which are sincerely held by their adherents.
Keep in mind that Christianity is inherently an evangelical faith, not in the sense of “Evangelicalism” but in the sense of being called to convert others. The problem is that there are a multitude of versions of Christianity out there, with the adherents of each version feeling compelled to convert others. Your and MikeB’s disagreements stem from the fact that you are each followers of very different versions of Christianity, and each of you is trying to convert the other, which is not going to happen.
Comment by Tim on September 29, 2024 at 11:08 pm
Thanks TimW. I promise I’m not trying to convert anyone. I’m here to defend progressive Christianity against the unfounded attacks that emerge from this site and to call out situations when secular conservative politics are passed off as being God’s word.
Thank you for the explanation on how evangelical Christians categorize the laws in the Bible. I would love to read more on why treatment of foreigners isn’t considered a moral law – I’ve been doing some Googling and can’t find anything. In a world where immigrants are being terrorized by right wing Christians over lies told for partisan purposes I think they have a lot to do with morality.
Comment by Tim Ware on September 30, 2024 at 12:23 am
Tim,
I hope we always live in a society where you, MikeB, and all others are free to promote your version of Christianity without censorship.