Two years ago, the court ruled Dobbs, the most important decision regarding stare decisis. How many times has Chief Justice Roberts cited Dobbs exist Loper Bright? zero. I suspect the Chief prefers to pretend Dobbs Never happened. In fact, Justice Kagan’s dissent noted that Roberts did not cite his own opinion Dobbs Concurrency, let’s get to the point directly!
On the other side of the scale, most importantly Decide Factors – calling it a “shock to the legal system” issue – serious objections to overturning Chevron. Dobbs597 United States, 357 (ROpen, CJ, concurring in judgment). Congress and agencies rely on Chevron– Its existence has been assumed in much of the work over the past 40 years.
but failed to cite Dobbs Questions are raised about what constitutes an appropriate stare decisis framework for constitutional decision-making. Roberts never calls Chevron “What a mistake.” That’s all he said Chevron Been “fundamentally misled” Chevron “A serious mistake was made.” The language was gentler. Instead, he returned Nick and Janus:
Decided Not an “unstoppable order” payne v. Tennessee501 US 808, 828 (1991) and Decide The most relevant consideration here is ” [the precedent’s] Reasoning, the operability of the rules it establishes,. . . and reliance on decisions,” Nick v. Scott Township588 US 180, 203 (2019) (citing Janus v. State, county and municipal employees585 U.S. 878, 917 (2018))—all the balance favors letting Chevron go.
Chief Justice Roberts draws on stare decisis analysis Janus: A weakened “shaky precedent” rests on shaky foundations:
For the purposes of this Court, it failed to follow the basis Chevron Since 2016. Cuozzo, 579 United States, 280 (most recent). but Chevron Still on the books. So litigants must continue to fight it, while lower courts—even bound by our shaky precedents, see Augustine v. Felton521 US 203, 238 (1997)—it is understandable that it continues to apply.
Therefore, the experience of the past 40 years has played little role in the revival. Chevron.
nevertheless, despite Dobbs Not cited, overlaps with this case.
Dobbs explains that for decades, courts have distorted other areas of the law to interpret roe. I call these situations epicycles roe. exist Loper BrightChief Justice Roberts points out the various ways courts have proven “fiction” Chevron. He noted that the court “for the better part of four decades imposed one restriction after another on Chevron, pruning its presumption…” Roberts noted that “we made many improvements in an effort to match Chevron’s company restrictions”. Chevronassumptions and reality.
First, United States v. mead (2001) establishes a “zero step” if the interpretation has no “legal effect”. second, Encino Motor Company (2016) ask whether a regulation has “procedural flaws.” Three, down adams fruitthe court does not apply Chevron to “Institutional Interpretation of Judicial Review Provisions.” 4. This hospital is not applicable Chevron “Statutory schemes not administered by institutions seeking respectability” epic system.
Fifth, Roberts raises an important and unresolved question—— Chevron to criminal law. exist Garland v. Cargillthe court held that the statute Clearly Reject the federal government’s new explanation. But some appeals courts have explicitly relied on Chevron Collision ban upheld. exist Guedes v. ATF (2020), Justice Gorsuch dissented from the denial of certiorari, holding that Chevron It has no place in the interpretation of criminal statutes. (In footnote 7 Loper BrightRoberts observed Guedes abolished Cargill.) Roberts did not invoke the leniency doctrine, which is how some members of the Fifth Circuit resolve the statute’s ambiguity. But he did point out the problem:
besides [Chevron] Doctrine continues to raise difficult threshold questions that promise to further complicate investigations Chevron is retained. look, e.G., Cargill v. wreath57 F. 4th 447, 465–468 (CA5 2023) (majority opinion) (May the government abandon its Chevron? Do Chevron Does agency interpretation apply to criminal penalty statutes? Do Chevron Replace leniency rules?
Sixth, Roberts also explained that some courts simply skip Chevron. Relatedly, the Trump administration is trying to abandon Chevroneven if the DC circuit insists on applying it.
Faced with this convoluted set of preconditions and exceptions, some courts have simply bypassed Chevronsaying that for some reason it makes no difference. Even if they do call Chevroncourts do not always focus on the individual steps and nuances of an evolving doctrine.
Seventh, in addition to procedural obstacles, Roberts also pointed to “substantive” obstacles. He wrote:
most notably, Chevron This does not apply if the issue in question has “profound ‘economic and political significance'”. king v. Burwell576 United States 473, 486 (2015).
Of course, Roberts writes king v. burwell. You’ll notice there are internal quotes. But Roberts did not identify the source of the markings. king Quote UARG (2014), which again cited FDA v. Brown & Williamson Tobacco Company (1999). These cases are considered the forefathers of modern great issues theory. I wonder why Roberts confuses the origins of the line “economic and political significance”?
In the next sentence, Roberts quotes West Virginia v. U.S. Environmental Protection Agencywhich again refers to whitman:
Instead, we expect Congress to “explicitly” grant such authority, if at all, Same as above.for”[e]Special authorizations from regulators are rarely achieved through “modest words,” “vague terminology,” or “subtle tactics.”[s],'” west virginia v. U.S. Environmental Protection Agency597 US 697, 723 (2022) (citing whitman v. American Trucking Associations531 U.S. 457, 468 (2001); altered from original).
Here at least, Roberts acknowledges that the main problem principle is some kind of solution Chevron principle, which implicitly involves issues of delegation. I saw Justice Gorsuch’s reaffirmation West Virginia v. U.S. Environmental Protection Agency Agreed, but there was no evidence to support Judge Barrett’s concurrence Biden v. Nebraska. Another reason I expected Barrett to write something different in the book Loper Brightbut she’s the mom here.
For all these reasons, Roberts concludes: Chevron It has become “unworkable”. Or, to put it another way, it is filled with so many exceptions that Chevron No longer a coherent doctrine. like roe.
because Chevron Its original two-step form was so uncertain and general that we were forced to clarify the doctrine again and again. Our attempts to do so will only increase Chevronis not feasible, change The first two steps turn into a dizzying break dance. look adams fruit co.494 United States, 649–650; mead533 United States, pp. 226-227; king576 United States, 486; Encino Motor Company579 United States, 220; epic system584 United States, pp. 519-520; constantly.
“Two-step” and “dazzling break dance.” Roberts can write. Another great quote:
At this point, Chevron is reduced to a rotten shell with a bold conceit.
Finally, Chief Justice Roberts attempted to inherit Justice Scalia’s mantle.
As an early supporter (and later critic) Chevron To recall, the courts during this period therefore determined the granting of discretion to agencies on a “clause-by-clause basis.” A. Scalia, Judicial Deference to Administrative Interpretation of the Law, 1989 Duke LJ 511, 516.
Even Justice Scalia, an early supporter Chevron, began to have serious doubts about whether an agreement with the APA could be reached. look Perez575 US, pp. 109-110 (concurring opinion).
But vague concepts always elude meaningful definition. As Justice Scalia said five years after this dilemma Chevron Decision: “How clear is too clear?” 1989 L.J., Duke, 521 points.
exist LaxmiJustice Kavanaugh went to great lengths to place Ninoy under the umbrella of traditionalism. Supreme Court members still appear to be living in Scalia’s shadow.
