Two cases, heard in tandem before the U.S. Supreme Court (SCOTUS) in January, have given the conservative high court justices the opportunity to decide whether to overturn, modify, or clarify the Chevron deference, an administrative law precedent that holds that the judicial branch should defer to federal agency decisions in matters when the applicable statutes are ambiguous or silent.

The Chevron deference, one of the most cited administrative law cases in history, is a polarizing topic. Opponents believe the law gives federal agencies too much power, while proponents “argue that without Chevron deference the everyday decisioning and rulemaking essential to operation of modern, complex statutory constructs could grind to a halt and the courts could be overwhelmed by a tidal wave of lawsuits,” Reuters says.

Checks and balances

The U.S. Constitution divides the federal government into three branches to ensure no individual or group has too much power.

The heart of American governance is the system of checks and balances that allocate power among the three branches of government—the legislative, executive, and judicial.

Each branch of government can change the acts of the other branches:

• The president can veto legislation created by Congress. This office also nominates heads of federal agencies and high court appointees.
• Congress confirms or rejects the president's nominees. Under exceptional circumstances, it can also remove the president from office.
• The Supreme Court justices, nominated by the president and confirmed by the Senate, can overturn unconstitutional laws.

Opponents of the use of the Chevron deference believe it gives the executive branch too much power.

Chevron v. National Resources Defense Council (NRDC)

Decided in 1984, Chevron is a foundational administrative law case in which SCOTUS held that when federal statute is ambiguous or silent, courts should defer to an agency’s interpretation of that law so long as it’s reasonable. Basically, this means the courts are to accept agencies’ reasonable interpretation of the law the agencies are administering, even if the courts would have interpreted the law differently.

In 1981, the EPA’s interpretation of a portion of the Clean Air Act (CAA) requiring the definition of certain sources of air pollution was called into question. SCOTUS “was tasked with determining whether ambiguity or silence in a statute means that the reviewing court can impose its own interpretation or if the expert agency’s interpretation should suffice,” according to the Center for American Progress. 

“The unanimous decision by the court in Chevron v. NRDC upheld the EPA’s regulation, introducing a two-step analysis for future courts to follow:

• First, courts look to whether Congress has ‘directly spoken to the precise question at issue.’
• If congressional intent is not explicitly clear, the court turns to whether the agency’s interpretation is ‘a permissible construction of the statute,’ deferring to agency experts as long as their interpretation is reasonable.”

In its decision, SCOTUS held that Congress’s purpose in delegating authority to federal agencies should include the ability to reasonably interpret the laws they are tasked with administering.

The decision “reasoned that administrative agencies have superior subject matter expertise and are therefore better equipped than courts to interpret these at times technical and complex regulatory schemes,” the American Progress article continues. “Further, the court noted that because agencies are overseen by the president and hence more democratically accountable to Americans through elections, they are better suited to interpret the ‘competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency.’”

Current cases

Background

“The Atlantic herring fishery is regulated by the Magnuson-Stevens Fishery Conservation and Management Act (MSA), aimed at preventing overfishing and promoting conservation,” according to an Oyez summary of the case. “The MSA sets up regional councils, including the New England Fishery Management Council, which oversees the Atlantic herring fishery. These councils create fishery management plans (FMPs) to set conservation measures, which must align with ten National Standards and other laws. … In 2000, the New England Council established an FMP for Atlantic herring, updated with an industry-funded monitoring program in 2020. The program partially shifts the cost of at-sea monitoring to vessel owners but aims for a 50% target of monitored herring trips, which will cause reduced profits for the fishing industry and communities.”

Loper Bright Enterprises v. Raimondo

Because of this rule, which was promulgated by the National Marine Fisheries Service (NMFS), Loper Bright Enterprises, along with other commercial fishing industry organizations, would be required to pay for compliance monitors at an estimated cost of $710 per day. The fishermen’s petition argues that the NMFS isn’t authorized to create industry-funded monitoring requirements and that it didn’t follow proper rulemaking procedure in creating the regulation.

Relentless, Inc. v. Department of Commerce

Relentless, Inc.; Huntress Inc.; and Seafreeze Fleet LLC, the owners of two fishing vessels, also challenged this NMFS-generated rule.

According to Oyez, the questions before SCOTUS in both cases are:

• “Does the Magnuson-Stevens Act authorize the [NMFS] to promulgate a rule that would require industry to pay for at-sea monitoring programs?
• Should the Court overrule Chevron v. Natural Resources Defense Council or at least clarify whether statutory silence on controversial powers creates an ambiguity requiring deference to the agency?”

Major questions

In West Virginia v. EPA, SCOTUS used the “major questions” doctrine to determine the matter rather than invoking the Chevron deference. By ignoring Chevron, many analysts believe the current conservative high court justices seek to overturn or modify Chevron in favor of the “major questions” doctrine.

Understanding this doctrine involves reviewing SCOTUS’s 89-page decision in West Virginia, which included a dissent by Justice Elena Kagan, a concurring opinion written by Justice Neil Gorsuch, and the majority opinion penned by Chief Justice John Roberts, who took several pages to justify SCOTUS’s decision to hear the case.

In that case, Roberts wrote, “[O]ur precedent teaches that there are extraordinary cases … in which the history and the breadth of authority that the agency has asserted, and the economic and political significance of that assertion provide a reason to hesitate before concluding that Congress meant to confer such authority.”

This invokes the “major question doctrine,” which requires agencies to point to “clear congressional authority” for any authority they claim. The idea of the “major questions” legal doctrine isn’t new. In a 2001 environmental law case, the late Justice Antonin Scalia wrote that “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Another SCOTUS decision determining the authority the Food and Drug Administration (FDA) had to regulate tobacco stated that “the court must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.”

These historical mentions clearly reveal that the major questions doctrine has been developing for some time.

The West Viginia decision marks the first time the doctrine has been used in a majority opinion, meaning the concept now “squarely endorses the idea that the power and discretion of agencies becomes more suspect as the significance of the agency’s action increases,” notes a Stanford Law School Blog by David Freeman Engstrom and John E. Priddy. “[T]he Court’s decision plainly weakens a longstanding, even bedrock, principle of administrative law. That longstanding principle is that courts are to grant agencies deference—known as [the] Chevron deference—when the agency interprets its own statutes. To be sure, the Roberts Court has been chipping away at that deference rule for years. Among other things, it has narrowed the types of agency actions that are entitled to Chevron deference. And, increasingly, the Court doesn’t mention Chevron at all even in cases where it would seem to apply. What makes the Court’s decision so important is that, in contrast to these earlier efforts to nibble around Chevron’s edges, the ‘major questions’ doctrine mounts something closer to a full-scale frontal assault.”

Administrative law nuts and bolts

More than 70 “amicus curiae” (friends of the court) briefs have been filed in the Loper and Relentless cases, which highlights just how important the Court’s ruling is for the future of administrative law.

In the fishing industry’s brief, it’s argued that the “Chevron deference is inconsistent with a landmark statute passed in 1946 called the Administrative Procedure Act (APA),” says the Constitutional Accountability Center (CAC).

This group filed an amicus brief in this matter “on behalf of scholars of administrative law and the APA, refuting that argument by demonstrating that deference to agencies on questions of law is entirely consistent with the text and the history of the APA.”

The CAC’s brief makes three main points regarding the APA:

• The APA isn’t clear regarding whether courts should defer to agency interpretations of the law. “Section 706 of the APA states that ‘the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.’ ‘Deciding’ a question of law does not mean that a court must ignore the agency’s interpretation,” the CAC article states. “A court can answer a legal question in many possible ways, including by considering an agency’s answer and adopting it if it is reasonable. Merely requiring courts to ‘decide all relevant questions of law’ does not dictate the analytical framework judges must use to do so.”
• The CAC brief demonstrates that, before the APA’s enactment, controlling law supported deferral to agency interpretations in cases when the applicable statutes were unclear. “Critically, there is absolutely no historical evidence that Congress altered that approach through the APA,” the CAC adds. “Accounts from the legislative record, such as reports from congressional committees and the Attorney General’s office, repeatedly characterized the APA as a restatement of the current state of the law with respect to judicial review of questions of law. To the extent that any of the key players involved in passing the APA thought it did anything to change the status quo in that arena, there is simply no evidence of it. This is especially notable given that there is extensive historical evidence that the APA did alter judicial practice with respect to the standard of review of agencies’ factual determinations.”
• SCOTUS and other notable APA interpreters never gave any indication that the APA, once passed, was seen as an alternative to the standard of review in cases when statutes were deemed unclear or ambiguous. “[SCOTUS] continued to cite pre-APA cases articulating a deferential standard of review, sometimes using even more explicitly deferential language than in the past,” the CAC reasons. “Administrative law commentators also overwhelmingly perceived no change to the standard of review. Most notably, the Attorney General’s Manual on the APA, an explanatory document published almost immediately after the APA’s enactment, stated that Section 706 ‘restates the present law as to the scope of judicial review.’ And almost without exception, administrative law scholars continued to emphasize the importance of pre-APA cases for understanding the scope of judicial review.”

Pro-Chevron

“If the Court either restricts or overturns the Chevron Doctrine, it will upend nearly 40 years of administrative law,” according to a Leadership Conference on Civil and Human Rights article. This group joined other groups, led by the Lawyers’ Committee for Civil Rights Under Law, in the filing of an amicus brief that emphasizes the importance of the Chevron doctrine in the enforcement of civil rights laws.

“It could throw into question thousands of regulations affecting civil rights, the environment, food safety, airline safety, consumer protection, health care, education, and many other aspects of life,” the article says. “And disputes over these regulations will spend a lot more time in courts, gumming up the process and forcing judges to play the role of policy experts. Overturning Chevron wouldn’t take away any rights, but it would sow doubt and confusion and make it much harder to fight discrimination.”

Interestingly, the NRDC, the original plaintiff in Chevron that didn’t receive a favorable verdict at that time, is now one of the parties filing an amicus brief in support of the Chevron doctrine in the current SCOTUS cases.

Anti-Chevron

In the FDA tobacco regulation case, SCOTUS was on to something when it wrote that “the court must be guided to a degree by common sense.”

One example of Chevron’s being applied without regard for common sense is the case of the Little Sisters of the Poor, which is a Catholic order of nuns that runs homes for the elderly poor.

“In 2011, the Department of Health and Human Services (HHS) issued a federal mandate as part of the Affordable Care Act (ACA),” a Becket Law case description says. “This mandate, based on vague language in the ACA, required employers to provide contraceptives in their health insurance plans. Despite the many religious objections to the contraceptive mandate, HHS included an exceedingly narrow religious exemption—one that did not include groups like the Little Sisters of the Poor. The Little Sisters’ religious beliefs about the dignity of all human life meant that complying with the mandate was impossible.  

“For a decade now, the Little Sisters have been in and out of court fighting to receive permanent protection from the contraceptive mandate. Even though they have secured multiple victories—including at the Supreme Court—they have been forced through years of court battles. The endless cycle of punishment for religious objectors exists because the Court’s decision in Chevron has empowered federal regulators to create new ways to punish unpopular religious groups and deny them exemptions.”

Another faction that supports overturning the Chevron defense are those that believe the “administrative state is unaccountable and bloated with power,” according to the American Progress article.

“Overruling Chevron is a piece of a larger strategy in which regulated industries have spent billions of dollars fighting regulatory enforcement, all in the service of corporate profits,” American Progress notes. “These conservative moneyed interests … also worked for decades to influence individual conservative justices to assist their efforts to deregulate.”

If Chevron is overturned, agency interpretations are predicted to be summarily rejected by the courts, and analysts also predict thousands of cases previously decided under the Chevron deference will be relitigated, placing many existing regulations in jeopardy.

Decision speculation

Based on SCOTUS questions during oral arguments in Loper and Relentless, analysts predict it’s likely the conservative justices will overrule, or at least limit, Chevron.

“A few Supreme Court justices have been openly critical of the Chevron Doctrine, but the position of other justices isn’t clear,” The Leadership Conference on Civil and Human Rights article says. “It’s possible that the Court will limit its ruling to the fees that are at issue in the case. Or it could put limits on the Chevron Doctrine so that courts don’t have to defer to agencies as much. Or it could overturn the doctrine altogether and upend how our government is able to deliver on the promises of federal laws.”

SCOTUS could also rule that statutory ambiguity is a rare occurrence and, in the case of commercial fishing monitoring fees, that the statute authorizes some fees but not these particular fees. This finding would allow the Chevron deference to stand, Reuters says.

“Another potential resolution could redefine whether the Chevron Doctrine applies when the statute is silent on the authority of the agency to fill the gaps on an issue,” continues Reuters. “The Court could find ‘silence’ evidences a lack of agency authority, so Chevron does not come into play. [Or, it] could expound or heighten the parameters around Chevron deference's two-part analysis, requiring convincing proof of agency authority and reasonableness in the exercise of that authority, thereby restricting Chevron severely.”

The Chevron doctrine battle has been waging for several decades, and this isn’t the first time the matter has been before SCOTUS.

“However, some read the Court's May 2023 decision in Sackett v. EPA — in which it rejected the EPA's definition of ‘waters of the United States,’ reciting a history of that much-litigated phrase that strongly implied longstanding regulatory overreach by the EPA, with no reference to Chevron in the opinion — as defining the Court's task to ‘ascertain whether clear congressional authorization exists for the EPA's claimed power,’” Reuters adds. “Some see this analysis as leaving no room for deference to an agency when the statute is silent on an agency's authority, potentially foreclosing deference based upon implied congressional authority.”

It’s interesting to note that Justice Roberts didn’t evoke the Chevron deference in either West Virginia or Sackett. So, it’s possible that the Court will surprise everyone and ignore the Chevron question altogether.

Justice Scalia, an accomplished administrative law attorney, was a strong advocate of Chevron. If it survives, Scalia’s prediction as to the reason for its survival may prove true. In a lecture at Duke Law School, he said Chevron will endure “not because it represents a rule that is easier to follow and thus easier to predict (though that is true enough), but because it more accurately reflects the reality of government, and thus more adequately serves its needs.”