Noah McDuff
I. An Introduction to Chevron Deference
The Supreme Court’s landmark decision in Chevron v. National Resources Defense Council[1] has served as a pillar in the administrative law community for almost forty years[2] and remains one of the most cited high court decisions in history.[3] In Chevron, the Court established the Chevron doctrine, a two-step analysis for judicial “revie[w] [of] an agency’s construction of the statute which it administers.”[4]
First, the court must identify whether Congress has directly addressed the issue in question (i.e., whether the statute is ambiguous).[5] If the statute specifically addresses the issue, such that congressional intent is evident, the Chevron analysis ends there, and both the court and the administrative agency must give effect to Congress’ intent.[6] However, if the statute is silent on the issue, the court will proceed to step two of the analysis to determine whether the agency’s interpretation is reasonable.[7] If the court finds that the agency’s interpretation is reasonable, the court will not impose its own reading of the statute, but will defer to the agency’s interpretation.[8] Thus, the Chevron doctrine grants federal administrative agencies substantial judicial deference if (1) a statutory provision is ambiguous, and (2) the federal agency’s interpretation of the ambiguity is reasonable.[9]
However, in recent years, the Chevron doctrine has been the target of attacks.[10] Critics, including prominent judges and scholars, fear that the doctrine places legislative and judicial power in the hands of unelected bureaucrats, whose motivation stems from economic gain, as opposed to sovereign representation.[11] Chevron supporters argue that administrative agencies are better positioned to address the technical aspects of federal law,[12] and revoking such administrative power would negatively impact important federal policies and programs.[13]
II. Chevron Lite: Deference In Its Modern Form
While intense debate swirls regarding its future, the modern Doctrine is more bark than bite.[14] In recent years, when faced with the task of applying Chevron, the Supreme Court has diminished[15] or outright ignored the Chevron doctrine.[16] For lower courts, Chevron is still binding precedent, and the courts continue to apply it as intended.[17] Regardless of its perceived importance in the world of administrative law, the fact that lower courts’ application of the Doctrine varies considerably from the Supreme Court’s reflects the Court’s struggle to identify the Doctrine’s foundations and to specify its reach.[18] Thus, Supreme Court review of Chevron will prove vital to the continued efficient operation of courts on administrative law matters.
III. Loper Bright Enterprises
Loper Bright Enterprises v. Raimondo[19] presents the Court with a much-needed opportunity to resolve uncertainty surrounding Chevron. The case is scheduled to be addressed during the Supreme Court’s October 2023 term,[20] and a decision is expected during the first half of 2024.[21]
In 2020, New Jersey-based fishing company, Loper Bright Enterprises, and other Atlantic herring fishermen (collectively, “Loper Plaintiffs”) filed suit in the U.S. District Court for the District of Columbia.[22] The Loper Plaintiffs challenged a final rule and implementing regulations promulgated by the National Marine Fisheries Service (“NMFS”) that established processes for industry-funded monitoring in Atlantic herring fisheries.[23] The final rule was promulgated under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (“MSA”), which was enacted to conserve domestic fisheries and other “aquatic resources.”[24] Under the MSA, NMFS was tasked with promulgating policies consistent with the MSA.[25]
The Loper Plaintiffs alleged that the rule promulgated by the NMFS violated both statutory and constitutional protections.[26] Specifically, the Loper Plaintiffs expressed concern for the economic costs such monitoring would place on the herring fleet.[27] Applying the Chevron doctrine, the district court ruled against the Loper Plaintiffs,[28] reasoning that “[e]ven if Plaintiffs’ arguments were enough to raise an ambiguity in the statutory text, the Court . . . would conclude that [NMFS’s] interpretation is a reasonable reading of the MSA.”[29]
The Loper Plaintiffs then appealed to the United States Court of Appeals for the D.C. Circuit.[30] In a divided panel, the appellate court deferred to the administrative agency’s interpretation of the MSA under the Chevron doctrine.[31] The Circuit’s opinion, authored by Judge Rogers, reasoned that the MSA does not provide a “wholly unambiguous answer . . . as to whether the [NMFS] may require industry-funded monitoring” and that the NMFS’s interpretation of the MSA to allow such monitoring was reasonable.[32] In doing so, the Court of Appeals set the stage for the Supreme Court’s Chevron showdown.
In its petition for writ of certiorari to the United States Supreme Court, the Loper Plaintiffs asked the Court to answer two questions: “(1) [w]hether, under a proper application of Chevron, the MSA implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry,” and “(2) [w]hether the Court should overrule Chevron or at least clarify the statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”[33] In May 2023, the Supreme Court granted certiorari to the Loper Plaintiffs as to only the latter question.[34] The Court’s grant of certiorari resulted in a plethora of amicus curiae briefs filed in support of both the petitioners and respondents.[35] Interested parties include the American Cancer Society, Muscular Dystrophy Association, American Federation of Labor and Congress of Industrial Organizations, American Association for the Advancement of Science, Main Street Alliance, American Sustainable Business Council, National Resources Defense Council, and many others.[36]
IV. Deference Moving Forward
In a year filled with attacks on administrative law powers,[37] as the current Court seeks to narrow the scope of federal administrative authority,[38] Chevron’s future appears bleak.[39]
Regardless of the clamor associated with the Court’s upcoming decision, overturning Chevron will likely not spell the downfall of administrative law.[40] To echo the sentiments of many scholars, judges, and other legal professionals, Chevron, in its original form, has been defunct for a number of years.[41] Further, an aggressive reading and application of Chevron runs afoul of the separation of powers doctrine in the Constitution.[42] That being said, courts can very likely still comply with the Constitution and resolve statutory ambiguities in situations that would give rise to Chevron deference by utilizing traditional means of interpretation. In the words of Justice Scalia, “Chevron is . . . not a declaration that, when statutory construction becomes difficult, we will throw up our hands and let regulatory agencies do it for us.”[43] After all, “Chevron only applies when, after exhausting all of the tools of statutory construction, the statute remains ambiguous.”[44] Further, it has long been understood that “[t]hose who ratified the Constitution knew that legal texts [including federal statutes] would often contain ambiguities,” and federal “judicial power was understood to include the power to resolve these ambiguities over time.”[45]
Therefore, courts have long been understood to have both the constitutional power and the proper tools and resources to address statutory ambiguities through traditional statutory interpretation. Thus, in Loper Bright Enterprises v. Raimondo, the Court should strike down Chevron, thereby preserving principles of federal separation of powers, and proceed with traditional means of statutory interpretation.
[1] 467 U.S. 837 (1984).
[2] See Cass R. Sunstein, Chevron as Law, 107 Geo. L. J. 1613, 1615 (2019) (stating that Chevron “has a strong claim to being the most important case in all of administrative law.”); Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 254 (2014) (explaining how Chevron “is the Supreme Court’s leading statement about the division of authority between agencies and courts in interpreting statutes.”).
[3] Kent Barnett & Christopher Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017) (explaining that “the decision itself is one of the most cited Supreme Court decisions of all time” and that as of 2017, it “has been cited in more than 80,000 sources“).
[4] 467 U.S. at 842.
[5] Id.
[6] Id. at 842–43.
[7] Id. at 843.
[8] Id. at 843-44.
[9] Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16 Geo. J. L. & Pub. Pol’y 103, 110 (2018) (citing Chevron, 467 U.S. at 842–43) (summarizing the holding of Chevron).
[10] See Sunstein, supra note 2, at 1615 (noting that Chevron is “under siege” and “it may not live to see the age of forty”); Nathan D. Richardson, Deference is Dead, Long Live Chevron, 73 Rutgers Univ. L. Rev. 441, 443–44 (2021) (“Moreover, Chevron appears under threat. Prominent judges and academics . . . have called for its reconsideration and possible rejection.”).
[11] See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv L. Rev. 2118, 2150 (2016) (“In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”); Michael W. McConnell, Kavanaugh and The “Chevron Doctrine,” Stan. L. Sch. Blogs (Aug. 2, 2018), https://law.stanford.edu/2018/08/02/kavanaugh-and-the-chevron-doctrine/ (Chevron “raises the deep question of constitutional governance: whether fundamental political questions will be debated and resolved by representatives of the people, or by agencies whose loyalties almost always are ideological or economic interests.”). For a discussion of judicial criticism of Chevron, see Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring) (“[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.”); Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring) (“Such a transfer [in authority] is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies.”). For an overview of legislative attacks against Chevron, see Jonathan R. Siegel, The Constitutional Case for Chevron Deference, 71 Vand. L. Rev. 937, 951–52 (2018).
[12] See Jeffrey. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1075 (2016) (“Many jurists and scholars see it [Chevron] as a salutary and natural outgrowth of administrative legal doctrine that recognizes the necessity of agencies’ technical expertise.”); Brief for American Cancer Society et al. as Amici Curiae Supporting Respondents at 4, Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023) (No. 22-451) (“The competent and stable administration of these [federal] programs depends on the deep expertise of the agencies to which Congress has assigned the responsibility.”); Brief for Scholars of Administrative Law and the Administrative Procedure Act as Amici Curiae Supporting Respondents at 3, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“Just as a court might ‘decide’ a question of law starting from a blank slate, a court equally fulfills that duty by looking to an agency’s interpretation of law and adopting it if it deems it reasonable.”).
[13] See Brief for Lawyers’ Committee for Civil Rights Under Law as Amici Curiae Supporting Respondents at 3, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“In the absence of agency rulemaking that addresses points on which underlying statutes are silent or purposely broad, our society’s ability to realize the benefits of the protections in this nation’s landmark civil rights statutes would be significantly impeded.”); Brief for National Resources Defense Council as Amici Curiae Supporting Respondents at 17, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“By restraining judges from imposing their policy preferences on an agency, deference also promotes legal uniformity . . . .”).
[14] See Michael Herz, Chevron is Dead; Long Live Chevron, 115 Colum. L. Rev. 1867, 1870 (2015) (“For all the clamor, attention, and citations, Chevron has had less of an impact than this attention implies.”); Richardson, supra note 10, at 443 (“But at the Supreme Court level, Chevron now lacks the power and predictability it claims to have—and may once have had—though it probably never had the influence its reputation suggests.”).
[15] See Buffington v. McDonough, 7 F.4th 1361 (Fed. Cir. 2021), cert. denied, 143 S. Ct. 14, 21 (2022) (Gorsuch, J., dissenting) (stating that an “aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely on it”); Kavanaugh, supra note 11, at 2151 (stating that “the Supreme Court itself has been reining in Chevron in the last few years”).
[16] See Richard J. Pierce, Jr., Is Chevron Deference Still Alive?, The Regul. Rev. (Jul. 14, 2022), https://www.theregreview.org/2022/07/14/pierce-chevron-deference/ (identifying recent decisions where the Supreme Court has “simply ignored Chevron”); Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022) (utilizing “traditional tools of statutory interpretation” without citing Chevron); Becerra v. Empire Health Found., 142 S. Ct. 2354 (2022) (agreeing with HHS’s interpretation of a statute without citing Chevron); Barnett & Walker, supra note 2, at 4 (“Scholars and commenters . . . have noticed the Court’s treatment of Chevron as a doctrine to ignore, disparage, or distinguish.”).
[17] See Barnett & Walker, supra note 2, at 32 (explaining how circuit courts applied the Chevron framework 74.80% of cases in which it could apply).
[18] Sunstein, supra note 2, at 1657 (“Since Chevron, the Court has struggled both to specify the foundations of the decision and to limit its reach.”).
[19] 45 F.4th 359 (D.C. Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023) (No. 22-451).
[20] Amy Howe, Supreme Court Will Consider Major Case on Power of Federal Regulatory Agencies, SCOTUSblog (May 1, 2023, 11:54 AM), https://www.scotusblog.com/2023/05/supreme-court-will-consider-major-case-on-power-of-federal-regulatory-agencies/.
[21] Id.
[22] Complaint, Loper Bright Enters. v. Raimondo, 544 F. Supp. 3d. 82 (D.D.C. 2021) (No. 20-466).
[23] Loper Bright Enters., 544 F. Supp. 3d at 93.
[24] Id. at 94.
[25] Id.
[26] Id. at 93–94.
[27] Id. at 96–97.
[28] Id. at 127.
[29] Id. at 107.
[30] Brief for Appellant, Loper Bright Enters., 45 F.4th 359 (D.C. Cir. 2022) (No. 20-466), 2021 WL 5357459.
[31] Loper Bright Enters., 45 F.4th at 369.
[32] Id.
[33] Petition for Writ of Certiorari at i-ii, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451).
[34] Loper Bright Enters., 143 S. Ct. 2429.
[35] See Juan-Carlos Rodriguez, Chevron Doctrine Supporters Flock to High Court in Key Case, Law360 (Sep. 22, 2023, 5:52 PM), https://www.law360.com/tax-authority/articles/1724839/chevron-doctrine-supporters-flock-to-high-court-in-key-case (detailing amicus briefs filed by various interested parties).
[36] Id.
[37] See Andrew Chung & John Kruzel, Federal Agency Powers in the Crosshairs at the US Supreme Court, Reuters (Jul. 5, 2023, 2:08 PM), https://www.reuters.com/legal/federal-agency-powers-crosshairs-us-supreme-court-2023-07-04/.
[38] Chung & Kruzel, supra note 37.
[39] See Pojanowski, supra note 12, at 1078 (“Skepticism about Chevron deference is not new, but hostile rumblings from the Supreme Court have grown in the past few Terms.”).
[40] See Pojanowski, supra note 12, at 1080 (“Abandoning Chevron may not, in fact, change the frequency and extent of judicial deference as much as Chevron’s critics hope or its supporters fear.”).
[41] See Herz, supra note 14, at 1870; Richardson, supra note 10, at 443; Pierce, supra note 16.
[42] See City of Arlington v. FCC, 569 U.S. 290, 312–13 (2013) (Roberts, C.J., dissenting) (“Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter, they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.”); Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring) (asserting that Chevron infringes on the Constitution’s separation of powers because it “is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (stating that “Chevron . . . permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design”); Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring) (discussing how “[t]he proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary”).
[43] Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting).
[44] Anthony Caso, Attacking Chevron: A Guide for Practitioners, 24 Chap. L. Rev. 633, 656 (2021).
[45] Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring).
