The End of Chevron Doctrine Will Unleash Space Exploration
When weighing factors that affect America’s strength in our renewed era of great-power competition, too many analysts overlook domestic regulatory law. June’s Supreme Court ruling in Loper Bright Enterprises v. Raimondo, which overturned the forty-year-old judicial doctrine known as “Chevron deference,” requires us to think carefully about a crucial domain of American power: outer space. The celestial writ of administrative agencies determines how American corporations and government entities behave in space—and hence our capacity to meet challenges from Russia and China.
It may take years for the impacts of this decision on legislation and administrative law to become fully apparent, especially for the space community. Right away, however, it seems there are significant opportunities to shape new rules that will guide our future interactions with the universe that lies beyond our skies. Contrary to the concerns of some, the Loper Bright decision does not condemn us to anarchic chaos. Instead, it allows us to address the weaknesses of a sometimes opaque and clunky top-down process by providing a more deliberative and open one.
Chevron deference originated from a 1984 Supreme Court ruling, changing the way that administrative and regulatory agencies could act when statutory language was unclear. Courts were instructed to grant significant discretion to regulatory bodies in interpreting ambiguous laws, intervening only if an interpretation was deemed impermissible. This deference placed detailed technical decisions in the hands of the executive branch. Over the past four decades, Chevron has been central in rule and regulation development, significantly shifting the balance of power from the judiciary to the executive. Michael Listner, writing in Space Review, provides a good overview.
Some assert that this decision bodes ill for future space activities. But the decision cannot easily be reversed. It is more useful to discuss the opportunities and challenges it presents for the space community rather than lament the passing of an idealized pre-Loper world. Importantly, the Loper decision does not eliminate regulatory agencies or rulemaking. These agencies will continue to make rules, and people will still be able to contest those rulings in court. Congress will still delegate regulatory authority through legislation. The end of Chevron deference changes the forum for debate when laws are unclear, leaving us to navigate this new landscape.
Looking at the vast expanse of possibilities that shape the landscape of space activity, we must consider the basic nature of space activities themselves. One essential fact is that our knowledge of practical details of what we do in and with the rest of the universe is inherently limited. Nobody can foresee with certainty all future discoveries or innovations, nor can we predict our chances for success. Everyone—from judges to regulators, legislators, and industry leaders—is (and may always be) on the early part of the learning curve. Over the last seventy years, we have learned much about outer space. Yet, compared to the vastness of the universe, our knowledge is just an infinitesimal drop in the bucket. We should approach discussions about our future in space with extreme humility. Space offers countless stumbling blocks for those who approach it with hubris.
The problem the Chevron doctrine presented for space was not about creating regulations but about how those regulations would be developed. Background discussions and debates are critical. The difficulties of operating in space and the humility they demand mean that, above all else, we need to be careful about showing our work when making difficult decisions. The regulatory process may involve listening sessions, public comments, and the creation of precedent. However, these are all secondary activities, not necessities.
The judiciary has a long record of tackling matters through open and public debate. Decisions come with opinions that refer not just to earlier precedents but to foundational principles. Courts often have multiple judges making rulings, generating majority, dissenting, and concurrent opinions where judges are compelled to explain their reasoning and the facts and precedent that inform it. This engagement on basic questions of meaning, value, and principles disappears when the rulemaking process buries those debates in an opaque interagency process. Rules are issued without clear records of careful debate or probing questions intended to expose and examine the basic reasoning and premises behind decisions. Moreover, the process can give rise to questions about agency motivation. By putting disputes before an independent third party, we can address concerns about whether an agency is acting in its own best interests or truly advocating for all stakeholders.
At the other end of the spectrum, Congress could pivot towards a common law approach to space, leaving the development and evolution of behavioral norms to the open debate and precedent that would emerge from an environment of permissionless innovation. Unlike her authoritarian rivals, America has a robust and effective private sector devoted to space activities. Companies like SpaceX are vastly lowering the costs of orbital access, rewriting the book on space infrastructure. While Russia is developing space weapons and China is aggressively pursuing moon missions, both are overly reliant on rigid and inefficient centralized government processes. There is nothing comparable to America’s profit-seeking space sector in these countries. Therein lies our advantage.
A decentralized and precedent-based system for creating space rules can advance America’s national interests while thwarting the ambitions of its competitors. International treaties might establish broad principles but provide little guidance on routine activities. Changing international regulatory structures is enormously difficult since it requires concurrence on basic principles among treaty parties. What are the chances America, Russia, and China will see eye-to-eye on rules for an essential site of strategic competition? However, there are ways forward that play to America’s strengths. The Artemis Accords, an agreement spearheaded by NASA and the State Department, lays the foundation for such a system by asserting the permissibility of private property rights in space. The Accords have been signed by more than forty nations, with more sure to come. This is a major step towards creating a pro-commerce space environment—which, given America’s decisive advantage in business and wealth creation, promotes our security against our rivals’ machinations.
To be clear, we cannot leave space governance entirely to the market. America must respect her treaty obligations, which require overseeing the space activities of her private citizens and government actors. Congress and the president will continue to make national space policy. Judges will continue to determine the suitability of private and public acts with existing law. Administrative agencies, acting under a clear legislative grant of authority, still have an important role to play in ensuring compliance with space best practices. The challenge is how to include and engage all these different sources of expertise.
A sensible path forward involves compromise, balancing executive rulemaking with judicial deliberation. Congressional legislation can specify cases where an implementing agency has the authority to act as a regulatory surrogate. Simultaneously, Congress can use its legislative authority to create and equip courts to address space issues. Courts can bolster their technical capabilities with special masters to investigate technical issues, amicus curiae briefs, and other tools. This approach allows us to address routine technical rulemaking. The establishment of best practices for the bigger questions can proceed at its own pace instead of demanding an unnatural degree of prescience from legislators and regulators.
We are venturing into new territory for regulations and administrative law. Short-sighted, unwise, or rash decisions about what we will permit or forbid in space can lead to an interminable stream of negative consequences. The best way to establish a clearly understood, well-reasoned, and thoughtful approach to governing space is through public debate, real experience, and careful engagement. That includes allowing for the emergence of some forms of private rulemaking. We need a combination of wise statesmanship and bold entrepreneurship to create a space environment conducive to America’s needs. The end of Chevron deference offers a unique opportunity to build institutions and capabilities that will unite us in plotting a course to the stars that will redound to our wellbeing on earth.
G. Ryan Faith has worked as staff on the U.S. House of Representatives Space and Aeronautics Subcommittee, the Space Foundation, and the Center for Strategic and International Studies. He was previously the defense and security editor at VICE Media and is currently working on a dissertation on historical conceptions of space in the United States. Follow him on LinkedIn and X @Operation_Ryan.
Alexander William Salter is the Georgie G. Snyder Associate Professor of Economics in the Rawls College of Business at Texas Tech University and a research fellow at TTU’s Free Market Institute. Follow him on LinkedIn.
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