Today, in a 6-3* decision, the Supreme Court overturned Chevron’s deference to Loper Bright Enterprises (which merged with Relentless Inc.).
The bottom line should come as no surprise to anyone who has followed the debate or the court’s treatment of Chevron over the past decade. The only hard part to tell is whether the court will formally strike down Chevron or announce major changes to Chevron but keep the name. It is consistent with the previous course.
The logic is very simple. The court’s job is to say what the law is, including saying whether an executive branch official or agency exceeded its authority in a particular case. The APA said the court should rule on the legal issues. Therefore, the court should do its job and not turn the relationship over to the agency when the case is close. (That’s not to say the other side doesn’t have formal and functional arguments, I’m just describing most people’s logic.)
But the court’s decision had three very important boundaries.
First, Chevron’s death doesn’t mean agency officials’ views don’t matter. If in theory they have expertise on issues relevant to the meaning of the statute, they can still share that expertise and the court can still be persuaded by them. (This is often called “Skidmore” deference, although I’m not sure whether the courts intend to retain that name.)
Second, in many cases agencies will still have broad authority. The court agreed that in many cases the best interpretation of the statute is that the agency has broad powers or that Congress has delegated to the agency a set of decision-making powers. In these circumstances, the agency remains greatly respected in the exercise of that power (within the confines of the non-delegation doctrine and now the material issues doctrine).
[Side note: I’m sure there will be a ton of writing soon about the practical implications of these cases. What I would like to see is a decent approximation or Fermi estimate of how many of the most important regulations are justified on the basis of the interpretation of ambiguous language vs. the implementation of broad delegated authority. Today’s cases imperil the former, but don’t move the needle on the latter. What percentage of cases are in each category?]
Third, the court stated that prior applications for deference to Chevron were presumptively safe under the doctrine of stare decisis because the fact that the interpretive framework had changed was not sufficient grounds to dismiss them. (I don’t think Justice Thomas or Gorsuch actually agreed with this view, even though they claimed to have joined that part of the opinion.) But, of course, new regulations and new agency actions may require “new” interpretations , and there will certainly be a lot of debate in the lower courts about the line between old precedent and new cases.
Some other observations about the approach:
1. The court rejected the idea of Chevron as a presumption of statutory meaning:
Chevron cannot reach agreement with the APA by assuming that statutory ambiguity is an implicit mandate for the agency, as the government and dissenters have argued. Presumptions have a place in statutory interpretation, but only to the extent that they approximate reality. Chevron’s presumption is not true because “[a]Ambiguity is not at all a delegation of the power of legal interpretation. Chevron confuses the two.
“Presumptions have a place in statutory interpretation, but only to the extent that they approximate reality” is a great statement. Is this something we should take completely seriously? There are many other interpretive presumptions, such as the principle of leniency or the principle of constitutional avoidance. Which two? These assumptions rise or fall depending on whether we think Congress really wanted to avoid excessive criminality or avoid pushing the boundaries of constitutional authority? Or are presumptions sometimes justified on other legal grounds? (In Interpretation, Steve Sachs and I argued that linguistic presumptions should be justified only if they approximate reality, but that legal presumptions can be justified on the basis of written or unwritten law, so That would be my preferred way of getting the point across.
2. The objection, based on the views of Louis Jaffe, Kenneth Culp Davis, John Manning, Cass Sunstein, and Adrian Vermeule, led to the majority’s sarcasm:
This dissent suggests that we need not take the APA’s directives so seriously because Harvard’s “best administrative law scholars” claim to see some wiggle room in them. Post, 18 (opinion of Kagan, J.). But nothing in the APA requires governments to respect the views of professors more than that. The dissenters’ list of Harvard’s best administrative law scholars is also incomplete. See S. Breyer et al., Administrative Law and Regulatory Policy 288 (7th ed. 2011) (acknowledging that Chevron’s deference “seems to conflict with the apparently contrary language of…706”); Kagan 212 (also acknowledging that Chevron’s deference Forron’s deference was based on “a fictitious statement of legislative aspirations”).
3. Justice Gorsuch’s unanimous opinion on the nature of classical common law reasoning and the role of judges in discovering rather than making law is a very fine contribution to the judicial literature on stare decisis. This can only be strengthened by reference to Sachs’s “In Search of the Law” and Quigley’s “Article III Legislation.”
4. This may be a trivial oddity, but even though the cases in Loper Bright (No. 22-451) and Relentless (22-1219) were consolidated and produced only one opinion, Justice Kagan’s dissent contained this asterisk :
*JUSTICE JACKSON was not involved in the consideration or decision
Case No. 22-451, and only when applicable to
Case No. 22–1219
One might talk colloquially about the “Loper Bright dissent” because Loper Bright’s name is first in the title, but technically Justice Jackson did not join the Loper Bright dissent, only the Relentless dissent. She did something similar in the consolidated case of Students for Fair Admissions v. Harvard and the University of North Carolina. Richard Re criticized the move. Syndicated blogger Josh defends it here.
5. One final thought that I have posted on twitter: Many of the court’s claims about Chevron, such as the fact that it lacks any basis in the statutory text, the fact that it applies in different ways, the fact that it applies in different ways, the fact that the court has repeatedly raised it out of dissatisfaction with its operation And the adjustment to that principle, and the fact that Congress can address that principle, but it should be an exception to the normal principle of statutory decision-making because it’s a mess of the courts’ own creation – all of those things can also be said, I think, to be the principle of qualified immunity.
