• Show Notes

Dear Reader,

Last week, the Supreme Court agreed to hear a case called Loper Bright Enterprises v. Raimondo next term. The key issue in the case is whether a doctrine called Chevron deference, which has been in place for nearly 40 years, will become the next victim of the Court’s recent animosity towards longstanding precedent. Chevron deference directs courts to let federal agencies fill in the details when laws passed by Congress aren’t crystal clear—and let’s face it, when are they? Chevron deference has become an important doctrine in administrative law that lets subject matter experts direct the implementation of federal policy. 

Here’s how Chevron deference works: under it, courts must accept agency interpretations of ambiguous laws as controlling, so long as those interpretations are reasonable, in the absence of precise congressional direction. Those decisions can’t be overturned if they are a reasonable interpretation of the statute. That notion of reasonableness gives courts plenty of latitude to intervene, but conservatives on the Supreme Court want more.

Sounds dry, even boring, right? But Chevron deference has enormous consequences in daily life. It’s why agencies can set standards and create protections for people and update them as information and circumstances change. That means Loper Bright Enterprises will be an important case, maybe even the most important case, next term. Federal administrative agencies have profound influence over, for example, environmental regulation, workplace standards, consumer protection, drug approvals, and immigration enforcement. That broad sweep has been the source of Republican criticism of the “administrative state,” which the Heritage Foundation, a conservative think tank, has described as “the nursery of despotism.” 

Justice Neil Gorsuch, dissenting from an earlier denial of certiorari in a case that could have presented the opportunity to reverse Chevron, wrote, “the whole project deserves a tombstone no one can miss. We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts. Someday soon I hope we might.” That’s one vote to overturn Chevron

Justice Clarence Thomas authored the opinion in a 1992 case, Brand X, where the Court deferred to an IRS interpretation of tax refund filing deadlines. He had changed his mind by 2020, when he dissented from a denial of certiorari in Baldwin v. U.S., a case that was also about Chevron deference, writing “Although I authored Brand X, ‘it is never too late to surrende[r] former views to a better considered position.’” Thomas, too, is clearly ready to end Chevron deference. Justice Brett Kavanaugh is also considered a Chevron skeptic. 

The positions of the other conservative justices are less clear. For instance, Justice Samuel Alito dissented in a 2018 case about immigration rules where the majority held that the Department of Homeland Security was ignoring the plain language of the statute, which meant they did not need to rule based on Chevron deference. He nonetheless addressed the issue in his opinion, because then-Justice Anthony Kennedy’s concurrence relied on deference. Alito wrote, “in recent years, several Members of this Court have questioned Chevron’s foundations [citing Justice Kennedy’s concurrence and previous opinions by Justices Thomas and Gorsuch]. But unless the Court has overruled Chevron in a secret decision that has somehow escaped my attention, it remains good law.” Nonetheless, the Supreme Court gets to pick the cases it wants to hear from among many possibilities, and the decision to hear Loper Bright Enterprises required the agreement of at least four justices. Selecting the case signals that a change is likely at hand. The conservative wing of the Court finally has its vehicle for overruling or substantially slenderizing Chevron deference.

It’s often said that bad facts make bad law. Loper Bright Enterprises filed its lawsuit to challenge a National Marine Fisheries Service rule that requires herring fishing boats to allow a federal observer aboard to oversee operations. The boats are also required to pay the observers, and the company says that rule, which Congress did not explicitly authorize, significantly hurts their profit margin. The facts in this case are an attractive lure for those predisposed to dislike what they consider to be an administrative nanny state.

Perhaps with that in mind, the Solicitor General argued that the Supreme Court shouldn’t take this case because “regulated entities and others routinely rely on agency interpretations that courts have upheld under the Chevron framework.” DOJ argued in favor of retaining Chevron deference because it “promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in administering complex statutory schemes.” For instance, with Chevron deference securely in place, decisions of experts at the FDA, like the one to approve the abortion drug, Mifepristone, would be less vulnerable to reversal at the hands of a federal judge who disagreed with agency expertise on policy grounds. In fact, one of the concerns with that ruling was that it upended longstanding reliance on the FDA’s decision-making process and that the resulting uncertainty could upset the development of new drugs. Despite concerns like this, the reality is that while Chevron deference is still on the books, it’s been limping along for the last few years. That’s because the Court has been using an upstart rule it calls the “major questions doctrine” to undercut it.

Last term, the Court decided West Virginia v. EPA, a case about whether the Environmental Protection Agency could limit greenhouse gas emissions for existing power plants by requiring reduced use or closure of coal-fired facilities. Chief Justice Roberts wrote the majority opinion, which uses the major questions doctrine to reject the EPA’s interpretation of the statute. Here’s how that doctrine works: the Court held that when agencies adopt regulations in cases with extraordinary economic and political significance, they must have clear authority from Congress. The Court held the EPA lacked it in that case. Recently, the Court has also used the major questions doctrine to invalidate COVID vaccine mandates and COVID-related evictions moratoriums.

Where is this headed? Given conservative antipathy for the administrative state, it’s likely that we’ll end up with federal judges, not subject matter experts at agencies, deciding how much authority those agencies have to put flesh on the bones of the laws passed by Congress. Not content with the use of the major questions doctrine to limit agency authority in cases the justices deem highly important, they want to tamp down on deference to agency action across the board. 

What could possibly go wrong?

Stay Informed,