With Chevron’s Demise, What’s Next?

This article was first published in North Carolina Lawyers Weekly.

It was a bad term for the administrative state.

In Corner Post, the Supreme Court of the United States upended settled lower court precedent and expanded the rights of people to challenge unlawful agency rules. Jarkesy neutered the ability of agencies to extract civil penalties by giving defendants the right to a jury trial.

Then there was Loper Bright (consolidated with Relentless), overturning the forty-year reign of Chevron deference. Chevron required courts to defer to an administrative agency’s interpretation of an ambiguous statute that it administers.

But no longer. In a 6 to 3 opinion by Chief Justice John Roberts, “Chevron is overruled.” The Court reviewed the case law leading up to the enactment of the Administrative Procedure Act (APA). Then the Court found that the APA simply adopted the preexisting rule, “that courts decide questions of law by applying their own judgment.” The majority eschewed a constitutional holding, instead determining that Chevron’s deference to agency interpretations could not be squared with the APA.

As I explained in an earlier column, overruling Chevron poses some problems of instability. That point was not lost on Justice Kagan, who penned the dissent. “Who,” she asked, “should give content to a statute when Congress’s instructions have run out?” With Chevron overruled, the answer is now clear: the judiciary. But now the question is how will courts give meaning to statutes when the text runs out?

One response will naturally be the traditional tools of statutory interpretation: analysis of language and syntax and the canons of construction. But we live in a world where Congress makes broad grants of rulemaking authority, and I wonder whether the traditional tools are up to the task.

Consider an example that touches on most Americans: OSHA. In the Occupational Safety and Health Act, Congress gave OSHA the power to enact any standard “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”

With Chevron, virtually any rule will satisfy this standard. The standard is purposefully ambiguous, and it’s hard for a court to say any that particular rule is beyond its bounds.

Yet, without any kind of deference, this standard is a tough nut for a judge to crack. What factors go into making a safety rule “reasonably necessary or appropriate”? Judges will rack their brains trying to interpret the phrase. There are probably some easy, outlier cases that fall outside the scope of this rulemaking authority, and many that will fit comfortably within its ambit. But there is no great way judge the edge cases.

This problem exists by design. Congress intentionally delegated rulemaking authority without a meaningful standard.

That is not something Congress is supposed to do. There is a body of law—not perfectly well developed—to prevent this kind of law, which is called the non-delegation doctrine. The doctrine has fallen on a century of hard times, despite recent efforts at resuscitation. But Chevron’s demise could bring the doctrine back into focus.

The OSHA example isn’t just a hypothetical but was the subject of a recent certiorari petition at the Court. The Court ultimately denied the petition, over the noted dissent of Justices Thomas and Gorsuch. The chief justice joined an earlier dissenting opinion by Gorsuch that would have revived the non-delegation doctrine. It’s likely that Justices Alito and Kavanaugh have similar feelings.

Despite the denial of this petition, Roberts’ Loper Bright opinion seemed to have its eye on the non-delegation doctrine. Roberts sought to temper the impact of Chevron’s overruling by emphasizing that Congress can expressly delegate to an agency the discretion to interpret statutory terms or fill in a statute’s gaps. But, he repeatedly emphasized, that grant of discretion is subject to “constitutional limits.” The doctrine providing those constitutional limits is the non-delegation doctrine.

Where courts will go after Loper Bright is hard to say. But I offer this modest prediction. Courts will grapple with the statutory text to understand what it means, and whether Congress has truly delegated discretion to an agency. That will lead to exasperation with the intentional seeds of ambiguity that Congress has planted in the United States Code. That will, in turn, lead to a revival—or threatened revival—of the non-delegation doctrine.

Troy Shelton is a board-certified appellate specialist in Raleigh, North Carolina. He partners with trial attorneys to win on appeal throughout the country. You can contact him by email at [email protected].