Understanding Chevron's Death

Today the Supreme Court ruled, 6-3*, to overrule the doctrine of “Chevron” deference to agencies in Loper Bright Enterprises, consolidated with Relentless Inc.

The bottom line should be unsurprising to anybody who had been following the arguments or the Court’s treatment of Chevron over the past decade. The only thing that was harder to tell was whether the Court was going to formally overrule Chevron, or announce a major revision to Chevron but retain the name. It went with the former course.

The logic is pretty straightforward. It is the Court’s job to say what the law is, including saying whether an executive branch official or agency has exceeded their authority in a particular case. The APA says Court’s should decide questions of law. And so courts should do their job, rather than give the tie to the agency in close cases. (That’s not to say that there aren’t both formal and functional arguments on the other side, I’m just describing the majority’s logic.)

But there are three very important boundaries to the Court’s holding.

First, the death of Chevron does not mean that the views of agency officials are irrelevant. If the theory is that they have expertise in questions that are relevant to the statute’s meaning, they can still share that expertise and courts can still be persuaded by them. (This has often been called “Skidmore” deference, though I’m not sure the Court intends to retain that name either.)

Second, in many cases agencies will still have broad delegated authority. The Court agrees that in many cases the best reading of the statute will be that the agency has broad power, or that Congress delegated to the agency a bunch of decisionmaking authority. In those cases, the agency still gets great deference as to the exercise of that authority (within the bounds of the non-delegation doctrine and now the major questions 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 says that under stare decisis, previous applications of Chevron deference are presumptively safe, because the fact that the interpretive framework has changed is not enough of a justification to overrule them. (I don’t think Justice Thomas, or Justice Gorsuch, in fact share this view, though they purport to join this part of the opinion.) But of course new regulations and new agency actions may require “new” interpretations, and there will surely be lots of debate in the lower courts about the boundary between old precedents and new cases.

A few other observations about the methodology:

1. The Court rejects the idea of Chevron as a presumption about statutory meaning:

Chevron cannot be reconciled with the APA, as the Government and the dissent contend, by presuming that statutory ambiguities are implicit delegations to agencies.  Presumptions have their place in statutory interpretation, but only to the extent that they approximate reality. Chevron’s presumption does not, because “[a]n ambiguity is simply not a delegation of law-interpreting power. Chevron confuses the two.” C. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 445 (1989).

“Presumptions have their place in statutory interpretation, but only to the extent they approximate reality” is a great line. Is it one that we should take completely seriously? What of many other interpretive presumptions, such as the rule of lenity or the canon of constitutional avoidance, to take two? Are these presumptions going to rise or fall on whether we think Congress really does want to avoid overcriminalization or avoid pushing the bounds of constitutional authority? Or will it turn out that sometimes presumptions are justified on some other legal basis? (In The Law of Interpretation, Steve Sachs and I argue that linguistic presumptions should be justified only to the extent they approximate reality, but that legal presumptions can be justified on the basis of written or unwritten law, so that would have been my preferred way to put the point.)

2. The dissent relies on the views of Louis Jaffe, Kenneth Culp Davis, John Manning, Cass Sunstein, and Adrian Vermeule, leading to this dig from the majority:

The dissent suggests that we need not take the APA’s directions quite so seriously because the “finest administrative law scholars” from Harvard claim to see in them some wiggle room. Post, at 18 (opinion of Kagan, J.). But nothing in the APA commands deference to the views of professors any more than it does the government. Nor is the dissent’s list of Harvard’s finest administrative law scholars entirely complete. See S. Breyer et al., Administrative Law and Regulatory Policy 288 (7th ed. 2011) (acknowledging that Chevron deference “seems in conflict with . . . the apparently contrary language of 706″); Kagan 212 (likewise acknowledging Chevron deference rests upon a “fictionalized statement of legislative desire”).

3. Justice Gorsuch’s concurring opinion about the nature of classical common law reasoning and the role of judges in finding, rather than making, law is a very good contribution to judicial writing about stare decisis. It would only have been strengthened by references to Sachs, Finding Law and Quigley, Article III Lawmaking.

4. It’s perhaps a trivial oddity, but even though the cases of Loper Bright (No. 22-451) and Relentless (22-1219) were consolidated and produced only a single set of opinions, Justice Kagan’s dissent contains this asterisk:

*JUSTICE JACKSON did not participate in the consideration or decision
of the case in No. 22–451 and joins this opinion only as it applies to the
case in No. 22–1219

People will probably colloquially talk about the “Loper Bright dissent” because Loper Bright’s name is first in the caption, but technically Justice Jackson did not join the Loper Bright dissent, only the Relentless dissent. She did something similar in the consolidated cases in Students for Fair Admissions v. Harvard and UNC. Richard Re criticized that move here. Co-blogger Josh defended it here.

5. A final thought, which I’ve already posted on Twitter: Many of the things the Court says about Chevron, such as its lack of any basis in the statutory text, its lack of any basis in historical backdrops, the fact that it is applied in divergent ways, the fact that the Court has repeatedly had to tweak the doctrine out of dissatisfaction with its operation, and the fact that Congress could fix it but it should be an exception to normal principles of statutory decisis because it is a mess of the Court’s own creation—all of these things could also be said, I think, of the doctrine of qualified immunity.

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