Today, the United States Supreme Court issued its ruling on the Chevron doctrine. This legal framework required judges to defer to the bureaucratic expertise of agencies under certain conditions. In the particular case before the Court that provided the context for challenging the Chevron doctrine, commercial fishermen objected to the imposition of a requirement that they pay for including an inspector on their fishing trips.
The Supreme Court held in Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al.:
“The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.”
US courts are no longer required to defer to agencies.
How did we get here? More importantly, what does this mean?
Let’s start with Chief Justice Roberts’ majority opinion.
In the beginning, the US Constitution laid out the powers for the judiciary of the new Republic. They knew that there would be differences of opinion in interpreting what laws mean, no matter how well written the legislation. The contest of litigation and the implementation of the law would settle these controversies. The forum for these arguments would be the courts. The Legislative branch would write the laws. The judiciary would have the final, exclusive say on what the laws were, cognizant of what those who were responsible for implementing the law thought, especially with respect to their thinking at the time of the law’s enactment.
The way in which the law was put into practice was an important guide, to be treated with “respect,” for judges looking to determine what the law said. Judges understood that the people in the Executive branch who made these laws happen (and who were often part of the legislative drafting process) were what we today might call experts or technocrats.
Respect did not mean that the court would parrot the opinion of the experts when it came time to judge. The expert input would inform but not decide. The judiciary was, after all, independent. Handing over the power to decide to the experts was not consistent with the Constitution.
Even after the explosion of new administrative agencies during the New Deal, Courts continued to maintain their independence from the experts. The agency experts had tremendous influence nevertheless. When it came to findings of fact (as distinct from judicial interpretation of statute), the courts effectively trusted the agencies as long as they had evidence to back up their claims. Questions of law remained the purview of the courts. Here’s the Court in a case called Skidmore v. Swift & Co. from 1944 talking about how much they would listen to the experts:
‘“The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”’
If the legislation explicitly granted the power for the agency to determine how a statutory term applied to specific facts as found by the agency, then the courts would defer to the agencies, consistent with the language in the legislation. In essence, the legislation specifically delegated some of its power to the agency. Courts were willing to abide this, as long ‘as the agency’s decision constituted “a sensible exercise of judgment.”’ When it came to “fact-bound determinations,” the courts would give the agencies some rope, but not all of it.
This initial deference on fact-bound interpretation was the thin edge of the wedge, leading naturally to inconsistency in application. Sometimes the courts would permit it; sometimes they wouldn’t.
In fact, shortly after key decisions that opened up this small deferential leeway for the agencies, Congress passed a new law, the Administrative Procedure Act of 1946, to make explicit what had been true from the beginning: ‘the traditional understanding that courts must “decide all relevant questions of law.”’ Its purpose was to act ‘“as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.”’
It is pretty explicit in Section 706:
‘As relevant here, Section 706 directs that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U. S. C. §706. It further requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.” §706(2)(A).’
All of this was of a piece with the settled way of doing things. The legislature writes laws. The courts judge disputes based upon the constitution and the laws as they are written. If they had wanted to depart from the supremacy of the court, then the Administrative Procedure Act would have been the place to do it.
‘In a statute designed to “serve as the fundamental charter of the administrative state,” Kisor v. Wilkie, 588 U. S. 558, 580 (2019) (plurality opinion) (internal quotation marks omitted), Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled pre-APA understanding that deciding such questions was “exclusively a judicial function,” American Trucking Assns., 310 U. S., at 544. But nothing in the APA hints at such a dramatic departure. On the contrary, by directing courts to “interpret constitutional and statutory provisions” without differentiating between the two, Section 706 makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference.’
Contemporaneous legislator thinking at the time of the writing of the APA is consistent with the principle of judicial control over decision making:
‘According to both the House and Senate Reports on the legislation, Section 706 “provide[d] that questions of law are for courts rather than agencies to decide in the last analysis.”’
The notion that the APA required courts to judge independently was well understood by leading legal thinkers at the time. Nothing prohibits them from asking what the people in the trenches and implementing the legislation think. The courts still must decide.
For those cases in which the statute delegates some authority to agencies to act on their own discretion, the courts must “fix the boundaries of the delegated authority” and check to see if the agencies have acted within the confines those boundaries.
This continued until 1984 when “a bare quorum of six Justices” took an orthogonal approach. This was the original Chevron case in which the Environmental Protection Agency was the defendant. The case related to the Clean Air Act.
The Court came up with two conditions. One, was the intent of Congress clear when they wrote the legislation? If not, then, two, was the statute “silent or ambiguous with respect to the specific issue.” Under Chevron, if both of these conditions were true, then courts would be required to defer and let the agency decide as long as it was ‘“a permissible construction of the statute,” ibid., even if not “the reading the court would have reached if the question initially had arisen in a judicial proceeding, ” ibid., n. 11.’ [emphasis added] This was an extension of “great respect” and “heavy weight” to a level that now crossed the threshold of control. This was deemed to be acceptable given the increased complexity of agency work and the indirect responsibility of the agency via its reporting line to the President. In the Chevron case itself, the EPA’s actions were deemed “permissible.”
A doctrine was born.
Over time, the Chevron doctrine gained judicial traction, being cited in more and more judgments.
‘Eventually, the Court decided that Chevron rested on “a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740–741 (1996) …’
There was an inconvenient problem, however.
‘Neither Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA. The “law of deference” that this Court has built on the foundation laid in Chevron has instead been “[h]eedless of the original design” of the APA. Perez, 575 U. S., at 109 (Scalia, J., concurring in judgment).’
This is the fatal flaw with its implementation. This made it a poor legal precedent, vulnerable to challenge. Bad law does not merit continued use as precedent, according to a set of tests that the judgment in Roper Enterprises rules Chevron fails.
Ambiguity in the law does not mean that Congress intended to delegate its authority.
‘As Chevron itself noted, ambiguities may result from an inability on the part of Congress to squarely answer the question at hand, or from a failure to even “consider the question” with the requisite precision. 467 U. S., at 865. In neither case does an ambiguity necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. And many or perhaps most statutory ambiguities may be unintentional.’
Courts in cases that do not involve agencies deal with statutory ambiguity all the time. There is nobody in those instances to whom the court could considering deferring. Courts handle statutory ambiguity to determine what the law is, to say what is the law’s “single, best meaning.”
That’s why Congress writes statutes. So that there is a written documentation of fixed meaning.
Chevron was more penetrating in that it was indifferent to the decision the court might have come up with on its own.
Here’s Roberts:
“It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.”
It is the job of courts to resolve statutory ambiguities. That’s what they do. They have the skills and the experience for this role. Agencies, tasked with implementing statutes, do not have equivalent competence when it comes to adjudicating statutory controversy.
If the courts have the wherewithal to decide, why should there be any distinction between the way in which statutory ambiguity is resolved judicially depending on whether or not there is an agency involved? Why should the decision as to what is permissible be different from the outcome a court would decide independently? Why use a legal doctrine that contradicts a law on the books that codifies the unique priority of the courts in deciding these matters? Why assume that the legislation delegates this authority to the agencies when it doesn’t?
The bugbear of inconsistent application was an inevitable consequence of something as arbitrary as the Chevron doctrine, making its usage more fraught.
‘Nor does a desire for the uniform construction of federal law justify Chevron. Given inconsistencies in how judges apply Chevron, see infra, at 30–33, it is unclear how much the doctrine as a whole (as opposed to its highly deferential second step) actually promotes such uniformity. In any event, there is little value in imposing a uniform interpretation of a statute if that interpretation is wrong. We see no reason to presume that Congress prefers uniformity for uniformity’s sake over the correct interpretation of the laws it enacts.’
The courts started trying to tweak the Chevron doctrine, adding more preconditions to its application beyond just ambiguity and lack of clarity, to make its round peg fit into the square hole of logic. These contortions made things messy and more complex.
‘Confronted with this byzantine set of preconditions and exceptions, some courts have simply bypassed Chevron, saying it makes no difference for one reason or another.7 And even when they do invoke Chevron, courts do not always heed the various steps and nuances of that evolving doctrine.’
This doesn’t provide certainty.
‘To plan on Chevron yielding a particular result is to gamble not only that the doctrine will be invoked, but also that it will produce readily foreseeable outcomes and the stability that comes with them. History has proved neither bet to be a winning proposition. Rather than safeguarding reliance interests, Chevron affirmatively destroys them. Under Chevron, a statutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes, with “[u]nexplained inconsistency” being “at most . . . a reason for holding an interpretation to be . . . arbitrary and capricious.” Brand X, 545 U. S., at 981.’
The US Supreme Court has not deferred to an agency since 2016. Chevron “fosters unwarranted instability.” Good luck trying to plan your actions around this thicket of randomness.
The principal argument that we will see in the coming days and months is stated in the closing line of the original Chevron opinion: “Judges are not experts in the field.” As Roberts points out, if the field is legal judgment, then judges are, in fact, the experts in the field.
After the chaos of the last four years, perhaps people have come to conclude that experts should be heard, but not necessarily followed blindly.
Critically, the Court left intact prior rulings that relied on Chevron, including the original case itself:
“By overruling Chevron, though, the Court does not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite the Court’s change in interpretive methodology. See CBOCS West, Inc. v. Humphries, 553 U. S. 442, 457. Mere reliance on Chevron cannot constitute a “ ‘special justification’ ” for overruling such a holding. Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266 (quoting Dickerson v. United States, 530 U. S. 428, 443).” [emphasis added]
What will this mean going forward? From now on, decisions about what is permissible at the agency level will be what courts decide, not what the agencies rule. Without the controlling influence of the courts, this gap may have grown significantly over time as the agencies essentially policed themselves. We can expect agencies to be less aggressive in their rulemaking, conscious of the possibility of successful legal challenge. Where they ran free for forty years, the agencies are now caged.
Time will tell how much this will crimp, or at least modify, agency behavior. After forty years of agency zeal to regulate, this could bring, at a minimum, greater certainty to the legal process, but also a diminution of the role of the administrative state.
Democracy dies with administrative discretion.