Chevron Deference: Could A Central Pillar of Federal Administrative Law End After 39 Years?

By Troy Shelton

This article was first published in North Carolina Lawyers Weekly.

A pair of cases about herring fisheries seeks to topple one of the central pillars of federal administrative law: Chevron deference.

But first, a primer on Chevron. Chevron USA v. Natural Resources Defense Council is a 1984 decision from the U.S. Supreme Court. The issue before the Court was whether and how a reviewing court should defer to a federal government agency’s interpretation of a statute that Congress had tasked the agency with administering.

The Chevron decision explained that deference is appropriate because an ambiguous statute reflects Congress’s intent to delegate gap-filling to the executive branch agencies who enforce the law.

Chevron requires deference if two steps are met. At step one, judges must ask whether the statute is ambiguous. If yes, step two requires they ask whether the agency’s interpretation is reasonable. If the agency gives a reasonable interpretation to an ambiguous statute, the agency’s interpretation must prevail.

Chevron displaced an earlier, multi-factor test for deference that tended to let courts defer, or not, at whim.

Over time, Chevron became one of the Court’s most-cited precedents in the lower federal courts. When lower courts apply Chevron, the agency almost always wins. An empirical has shown that, when courts reach step two, the agency wins 94% of the time.

It’s mostly conservatives who currently desire to overrule Chevron’s overruling. But it wasn’t always that way. During his lifetime, Justice Antonin Scalia was one of Chevron’s most ardent supporters. Chevron fit within the conservative legal movement’s desire to restrain policymaking by the judiciary, leaving politics to the politically accountable branches. Chevron also facilitated President Reagan’s efforts to deregulate, free from judicial interference.

Despite the rosy reception, conservatives have now cooled on Chevron because it also erodes constitutional values. Chevron’s critics argue that it’s the judiciary, not the executive branch, that is supposed to say what the law is. And it’s Congress’s role, not the President’s, to write laws that actually mean something. At its core, they argue, Chevron deference might restrain judges, but it also violates the constitution’s separation of powers.

It is unclear how the Supreme Court currently views the doctrine. The Court rarely mentions Chevron when it would otherwise apply. And at least four of the current justices have questioned the doctrine’s viability and scope.

That brings us to this term. Two cases ask the Court to overrule Chevron or least severely limit it: Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.

The enemies of Chevron have chosen a good vehicle. The lower courts deferred in Loper and Relentless because of silence in a federal statute. The lower courts considered the silence to delegate the unaddressed issue to the federal agency. But, as an amicus brief from the House of Representatives argues, silence means that Congress hasn’t delegated anything. If silence empowers agencies, they said, it’s hard for Congress to restrain agencies.

But will the Court really overrule this mainstay of administrative jurisprudence? And does it need to?

The Court has been cutting back on agency overreach for the past several terms. In 2022, the Court announced the major questions doctrine: a new interpretive canon that presumes Congress didn’t intend to delegate questions of vast economic and political significance to agencies. In other cases, the Court blocked the creative use of administrative law to forgive student loans and has invalidated other laws that made agencies politically unaccountable.

In 2019, the Court trimmed back a different deference doctrine, called Auer deference, in Kisor v. Wilkie. Auer deference requires courts to defer to an agency’s interpretation of its own ambiguous rules. Kisor fell one vote short of completely overruling Auer. Since the decision, the late Justice Ruth Bader Ginsburg has been replaced by Justice Amy Coney Barrett. Justice Barrett’s views on deference aren’t clear.

Chevron’s enemies say that Loper and Relentless should follow the trend of paring back the administrative state. But supporters point to the more recent decisions as better solutions to administrative overreach than overruling Chevron. The supporters worry that overruling Chevron would destabilize the lower courts. And, without deference, those courts are likely to offer conflicting interpretations of the same legal questions. Those circuit splits will require constant intervention by the Supreme Court.

That said, Chevron creates its own instability. Instead of interpretative differences from court to court, the public is treated to swings in “interpretative” differences from Presidential administration to Presidential administration. Likewise, as one amicus argues, many states have repudiated Chevron for state administrative law without suffering adverse consequences.

Oral arguments in the two cases are set for January 17, 2024. By June, we should learn whether Chevron is truly relentless.

Troy Shelton is an appellate partner in Raleigh at Fox Rothschild. He works with trial attorneys to win on appeal in state and federal courts.