The Supreme Court has agreed to decide a case next term that could afford its right-wing supermajority a long-sought opportunity to narrow the deference that judges owe to administrative agencies.
The case at hand, Loper Bright Enterprises v. Raimondo, is a dispute over whether a federal agency, the National Marine Fisheries Service, has the legal authority to compel herring fishing companies to fund the monitoring of the Atlantic herring fishery. The New England Fishery Management Council administers monitoring programs to assess the amount and type of catch in the fishery. The herring companies concede that the relevant statute—the Magnuson-Stevens Fishery Conservation and Management Act of 1976—permits the service, a part of the Commerce Department, to require at-sea monitors, but they argue that the statute prohibits any industry-funded monitoring mandates beyond a limited set of circumstances not present in this case. For its part, the service contends that the act authorizes the funding requirement. The U.S. Court of Appeals for the D.C. Circuit concluded that the act neither compels nor prohibits such a program but that the service’s interpretation of its regulatory authority should be upheld because it is reasonable. (The defendant in the case is Gina Raimondo, the Secretary of Commerce and former Rhode Island governor.) Accepting an agency’s reasonable interpretation of its regulatory authority under a statute open to more than one plausible reading is known as “Chevron deference.” The framework delimiting the occasions for such deference is also commonly referred to as the “Chevron doctrine.”
Chevron deference is rooted in a 1984 Supreme Court opinion, Chevron v. Natural Resources Defense Council, authored by the late Justice John Paul Stevens. The ruling upheld an interpretation of the Clean Air Act by the Environmental Protection Agency that made it easier to grant permits for the building of new sources of industrial pollution, even in states that had not yet met the specific air quality standards the EPA had promulgated. The Court, in a 6-0 ruling—three justices did not participate—found that the act neither compelled nor forbade EPA’s approach. The Court upheld EPA’s reading as “a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth.”
What was novel about the Chevron decision was not that judicial deference to agency interpretation is sometimes appropriate. As the eminent administrative law scholar Peter L. Strauss has pointed out: “Cases reaching back well into the nineteenth century had reasoned that settled administrative interpretations, or administrative interpretations contemporaneous with enactment, are ‘entitled to very great respect,’ and ought not be disturbed if they are possibly within the meaning of statutory language, or ‘overruled without cogent reasons.’” What was new was the narrowness with which the Court described the kind of statutory question that courts could resolve independently. What was also novel was how the Court seemed to make deference to agencies mandatory in resolving statutory ambiguities beyond that zone.
In what became known as Chevron’s two-step analysis—humorously immortalized decades later in a video produced by New York University law students—the Court instructed judges to consider first “whether Congress has directly spoken to the precise question at issue.” A court determining at “Chevron Step One” that “the intent of Congress is clear” would then uphold the agency action only if that action was consistent with “the unambiguously expressed intent of Congress.” If, however, a reviewing court should decide that the relevant statute “is silent or ambiguous with respect to” the question at hand, then that court would be duty-bound to accept the agency’s interpretation so long as that reading represented a “permissible construction.”
This judicial duty might seem to leave very little room for judges to interpret statutes independently. After all, given that congressional language cannot cover every unanticipated contingency regarding regulation, the number of litigated cases involving laws that express Congress’s intent “unambiguously” could be nearly zero. In the immediate wake of Chevron, many lower courts responded by deferring to agency interpretations more reflexively.
However—and there is some irony here—the Chevron two-step test is itself ambiguous. Stevens wrote that reviewing courts were to address Step One—the search for congressional intent— “employing traditional tools of statutory construction.” Those “tools,” as I discuss below, involve a variety of rules intended to extract clear meaning from linguistically ambiguous wording. In other words, a statute’s words may be “ambiguous” in the semantic sense but not in a legal sense. Language that seems ambiguous can have clear legal implications once “traditional tools of statutory construction” are employed to help decode it.
The reason for the somewhat chiding tone of Stevens’s opinion vis-à-vis lower courts is that the more progressive judges on the D.C. Circuit of the 1970s had been, in the Court’s view, overeager to impose their views of sound policy on the agencies they reviewed. The immediate implication of Chevron was to tell lower courts not to compel agencies to regulate even more stringently where the Ronald Reagan administration’s more relaxed statutory reading was “reasonable.” It is doubtful that Stevens thought he was changing the law regarding judicial deference, a possibility that might be further illuminated with the release this month of his private papers.
Despite its seemingly conservative roots, Chevron deference has become a target for criticism among legal academics—and Justices—who argue that the judiciary has gone so far in deferring to agency legal readings that administrative agencies are displacing Congress in making law. “Overrule Chevron!” has become a battle cry among right-wing judges hostile to the late 20th-century administrative state. This is an odd fetish for at least three reasons.
First, developments since the 1984 Chevron ruling have confirmed that the room for independent interpretation remains vast. That is because, to aid them in interpretation, courts have evolved many rules—called “canons of construction”—to guide them. Some of these rules are presuppositions about how people use language. For example, if an ambiguous word appears in the middle of a list, courts should assume it is intended to resemble other things in the list. An agency authorized to regulate “wrestlers, boxers, and fencers” would know that “boxers” did not refer to underwear or a breed of dog, but rather to a type of fighter, like “wrestlers” and “fencers.” Other canons are designed to promote important constitutional values. For example, if there is genuine uncertainty about whether a criminal statute covers a defendant’s conduct, the doubt is supposed to be resolved in the defendant’s favor out of a concern for due process. This canon is called the “rule of lenity.” Aided by such canons, courts frequently discern clear meaning that is binding on executive branch agencies, even when a lay reading of the statute might suggest ambiguity.
Second, the Court has made clear since 1984 that agency interpretations of law, to pass muster under Chevron’s Step Two, must survive a judicial “hard look” to demonstrate that the agency is not being “arbitrary or capricious.” An agency advancing an interpretation of its statute on the ground that it properly facilitates the legislative intentions behind Congress’s handiwork must offer clear reasons substantiating the reasonableness of the agency’s view, backed up by a factual record and taking account of alternative readings. “Permissible” does not mean “anything goes.”
The third reason is that the Court’s recent invention of the so-called “major questions doctrine” seems to do all the separation-of-powers-reinforcing work that the Court purportedly yearns for. In West Virginia v. EPA, a ruling from last year, the Court elaborated a new two-part approach for determining whether an ambitious administrative initiative is statutorily authorized. First, a reviewing court determines if the administrative action qualifies for extra scrutiny as a “major question.” This threshold determination requires assessing the “history and the breadth of the authority that the agency has asserted and the economic and political significance of that assertion.” If the challenged agency initiative would result in an “unheralded” and “transformative expansion” of its regulatory reach, then the second step of the test requires the agency to locate in its statute “clear congressional authorization” for its ambitions.
In other words, an ambiguous statute that might otherwise reasonably be read under Chevron Step Two to permit the agency’s assertion of power will no longer do so if the agency’s initiative is a “major question.” In the West Virginia case, the Court disapproved of new rules to control air pollution from stationary sources—rules that quite likely would have fit within the language of the Clean Air Act if the agency were owed deference. Because of the major questions doctrine, many fear the Court will invalidate the Biden administration’s partial student debt forgiveness program even though the administrative action involved tracks the Department of Education’s authorizing act quite precisely.
Because of the major questions doctrine, Chris Walker, the University of Michigan law professor and a leading conservative voice among scholars of public law, has expressed some puzzlement as to why the Court would now get rid of Chevron deference. He recently tweeted: “The Court’s increasingly searching Chevron Step One ambiguity inquiry allows courts to do the Article III ‘say what the law is’ function, leaving only non-major-policymaking to agencies when there truly is Chevron space/discretion to regulate. . . What’s left of Chevron deference is policymaking discretion for implementation details, where [the] agency clearly has comparative expertise and accountability over courts (and Congress?), and where national uniformity in law is paramount for the regulated and public more generally. In this new MQD world of Chevron deference, one might think that the costs of abandoning Chevron deference entirely far outweigh the benefits.”
Walker’s Twitter thread does not account for the possibility that overruling Chevron is more valued on the right for its symbolism than anything else. Given all the deference-supportive precedent that preceded Chevron—and the absence of any real alternative when a judge confronts a highly technical statute in which the agency’s expertise exceeds her own—it is hard to predict how many cases would turn out differently in a post-Chevron world.
But symbolism is important. The Court under Chief Justice John Roberts—taking a rigid view of the separation of powers—repeatedly defends its hamstringing of administration as a way of resuscitating Congress as the Constitution’s preferred policy maker. A more accurate account of its jurisprudence would treat such moves as judicial self-aggrandizement. In critical cases, the Court assumes on tenuous historical grounds the authority to tell Congress how to do its business. For example, its supposedly pro-Congress decisions co-exist with pro-presidency opinions, such as Seila Law, LLC v. CFPB, that prevent Congress from creating independent administrative officers. But the Roberts Court’s bottom line is consistent and hubristic: Unless Congress makes law that we like, we, the Justices, interpret around it to suit our preferences. A new paper by the congressional scholar Josh Chafetz documents the Roberts Court’s self-aggrandizement. He notes “the remarkably dismissive rhetoric that judges use toward other institutional actors, combined with rhetoric meant to obfuscate the judiciary’s institutional character and present it as a disembodied, neutral voice for an apolitical law.”
There is a reminder in the Chevron opinion that is arguably even more valuable than the technical details of deference law. “Judges are not experts in the field and are not part of either political branch of the Government,” Stevens wrote 39 years ago, in words no less true today. “Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences.” Loper Bright Enterprises v. Raimondo will allow the Roberts Court to show whether, 40 years after Chevron, judicial modesty is still on the agenda.
