I think that we can all agree that political polarization is incredibly high right now. But is Chevron deference partly to blame? Longtime Supreme Court advocate Paul Clement seems to think so. In a recent article, Jeff Overley discussed comments made by Clement in various forums and in briefing before the Supreme Court in Loper Bright Enterprises v. Raimondo. In addition to discussing the constitutional issues surrounding Chevron deference, Clement has argued that Chevron deference leads to wide swings in federal regulatory policy and enforcement. And, as a result, we see a record level of suits by state attorneys general seeking to put a stop to the latest policy change by the incoming administration.
As Overley's article notes, other legal scholars disagree with Clement's position, both on Chevron's impact on polarization and on whether Chevron deference should survive the latest constitutional challenge pending before the Supreme Court. Certainly, there are many causes to the increased political polarization in the U.S., but Clement's perspective is an interesting hot take. His solution is that legislation that survives the negotiating process through Congress will create less extreme shifts in policy between administrations, reducing backlash from the losing side.
If the Supreme Court overturns Chevron deference in the Loper case as many experts expect, it will be interesting to see if Clement or his opponents are right as to whether there will be a positive impact to reduce our current polarized environment. Regardless, removing the deferential standard in Chevron will certainly open up all federal agencies, including FDA, to closer scrutiny by the courts and may potentially open up the floodgates for aggrieved companies and individuals to challenge agency decisions in court. So, although Chevron's demise may turn down the temperature of political polarization, it is likely to increase the temperature on FDA and other federal agencies to defend their decisions in court.