The Supreme Court majority seems likely to overturn the Chevron doctrine, but it may do so more modestly than conservatives hope.
The Supreme Court majority seems likely to overturn the Chevron doctrine, but it may do so more modestly than conservatives hope.
T he Supreme Court heard arguments Wednesday in two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, both challenging the doctrine of Chevron v. Natural Resources Defense Council (1984). The central question in Loper Bright and Relentless is whether the Court should discard the rule of Chevron that courts should defer to an agency’s interpretation of a federal statute it is charged with enforcing, if the Court thinks the statute is “silent or ambiguous” and the agency’s interpretation is a “reasonable” one. That deference applies even if it produces a reading of the meaning of the law that is not how the Court itself would interpret it in the absence of an agency rule.
The Constitutional and Structural Argument
As our editorial explained, the Court should overturn Chevron. Its rule of deference allows the agencies to take the job of interpreting law out of the hands of the courts. It produces instability and inconsistency by allowing agencies to repeatedly change the meaning of statutes passed by Congress — or worse, when the agency doesn’t change course, it lets a single presidential administration lock in the meaning of laws without asking Congress. It encourages the expansion of unilateral executive power. It reduces everyone’s incentives to make law through the traditional bargaining process between the House, the Senate, and the White House.
Nothing in the Constitution gives agencies the power to interpret the law in ways binding upon the courts. In fact, the Constitution never mentions administrative agencies at all. The Court should presume that the separation of powers makes the judiciary supreme in its own area where the Constitution says nothing to the contrary.
It’s the right moment to worry about an overweening executive. Anyone worried that Donald Trump might act like a dictator if elected to another term should want to tyrant-proof our system by reducing the lawmaking powers of the executive over the lives of American citizens, and fortify our traditional checks and balances. So, of course, should anyone who has watched Joe Biden act as a lawless rogue, dispense public money without congressional appropriations like a king, and threaten to borrow money without the consent of Congress and issue debt backed only by executive fiat.
The Statutory Argument
The challengers have identified two problems with Chevron. One is constitutional; the other is statutory. There is a very real chance that the Court may rule on the statutory argument and bypass the constitutional case. Indeed, there were signs in the oral argument that this may be exactly where the Court is headed.
Under section 706 of the Administrative Procedure Act (APA), when reviewing agency action, “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.” (Emphasis added throughout.) Section 706 says nothing about deference, instead affirmatively commanding that the courts “shall decide” questions of law. It also draws no distinction between how courts interpret “constitutional and statutory provisions.”
That’s a problem for Chevron deference: Nobody defends the outlandish notion that courts should defer to an agency’s reading of the Constitution. Even solicitor general Elizabeth Prelogar conceded at argument that Chevron is “only a doctrine that applies in the context of statutory interpretation.” But if the two standards are the same, then agencies would gain interpretive power over constitutional questions; if they’re different, the Court has to read a distinction into a statute that doesn’t contain one.
Section 706 goes on to explain the circumstances in which a court should strike down agency action. First, a court shall “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” If the agency acts within the law, the court must be deferential, striking down only those rules that are “arbitrary” or “capricious” and those discretionary acts that “abuse” discretion; but if the agency acts “not in accordance with law,” no such deferential standard is suggested. That is fairly clear evidence that Congress did not intend courts to defer to the agencies when deciding whether they acted within the law in the first place.
Second, Section 706 lists three specific types of legal violations that require agency action to be struck down: if it is “contrary to constitutional right, power, privilege, or immunity,” if it is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” and if it is “without observance of procedure required by law.” That covers the waterfront of ways in which an agency lacks legal authority to act — and none of it is framed in terms of judicial deference to the agency. Instead, the Court “shall . . . hold unlawful and set aside” acts that fail that test.
Third, Section 706 lists two other grounds for striking down agency acts: Some specified classes of cases call for doing so if the agency’s action was “unsupported by substantial evidence,” while others are to be struck down if “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” “De novo” is the least-deferential standard: It means that the court is looking at a question “as new” — i.e., conducting its own independent review. Under Section 706, some but not all cases permit a court to conduct its own de novo review of the facts or strike down actions for being insufficiently supported by evidence. Again, Congress drew careful distinctions as to when courts under Section 706 would apply a non-deferential de novo review of the evidence; it placed no similar limits on when de novo review would apply to questions of law.
Fourth and finally, in the case of agency inaction, Section 706 provides that a “reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” Inaction can be judged either unlawful or unreasonable; there’s no mention of a third category of “not reasonably lawful.”
If the text of Section 706 was not enough, the Relentless brief collects evidence from the time of the 1946 passage of the APA illustrating that commentators, witnesses, and Congress — before and immediately after the APA’s enactment — expected courts to determine questions of law, rather than defer to the agencies. The Chevron doctrine of deference did not arise until 38 years later, in spite of extensive litigation in those years regarding agency actions.
Should Chevron be the last word on this question? The whole idea of stare decisis is that courts should not revisit questions they previously decided. But the Chevron Court never quoted or even cited Section 706. It simply didn’t come up.
Two Cases, Two Arguments
One complexity in Wednesday’s arguments is that the Court heard two separate cases, resulting in a marathon argument that ran more than three and a half hours. It granted certiorari last May to hear Loper Bright, but that case came with a complication: It had come up from the D.C. Circuit during the time that Ketanji Brown Jackson was a judge on that appeals court. Under standard practice, now-Justice Jackson recused herself in Loper Bright on the theory that an appeals judge can’t sit in judgment of her own work. As I noted at the time, that’s a dumb recusal rule, especially given that Jackson didn’t even contribute to the D.C. Circuit opinion. Nevertheless, it seems likely that the Court — much as it did, scandalously, in separating the Harvard and University of North Carolina racial-preferences cases in order to let Jackson sit in the UNC case — granted cert in Relentless largely in order to ensure that a decision as momentous as overruling Chevron is done by a full Court.
That’s an ironic reason to bend over backward to have nine justices, given that Chevron itself was decided by a six-member Court: Justice Sandra Day O’Connor was recused, and Justices William Rehnquist and Thurgood Marshall were absent because of illnesses. The case was decided by a Court with five Republican appointees out of six, but no originalists, textualists, or conservatives. The opinion was written by Justice John Paul Stevens and joined by Chief Justice Warren Burger and Justices William Brennan, Harry Blackmun, Lewis Powell, and Byron White. That’s an arch-liberal Eisenhower appointee, a liberal Ford appointee, two moderate and one liberal Nixon appointees, and a center-right Kennedy appointee.
Aside from ensuring a ninth vote in one of the two cases, a key result of hearing two challenges to Chevron is that the plaintiffs present two somewhat distinct arguments. The Loper Bright plaintiffs are represented by the Cause of Action Institute, part of the Koch network, and its lead lawyer is former solicitor general Paul Clement of Clement & Murphy. Their brief prioritizes the constitutional challenge to Chevron, but also offers a fallback that would further limit Chevron instead of eliminating it, by ruling that it is inapplicable when a statute is silent rather than vaguely worded. The Relentless plaintiffs are represented by the New Civil Liberties Alliance, and their case was argued by Roman Martinez of Latham & Watkins. They have put more stress on the statutory argument.
The Argument
With that backdrop, the arguments offer some clues as to where the justices’ heads are. In the view of SCOTUSBlog’s Amy Howe, “it seemed unlikely that the . . . Chevron doctrine will survive in its current form. A majority of the justices seemed ready to jettison the doctrine or at the very least significantly limit it.” That reflects the general tenor of commentary on the arguments from close watchers of the Court. Over on the Corner, I’ll walk in more blow-by-blow detail through the questioning to read the tea leaves, and lay out why I think the Court is likely to rule on the statutory question and probably to place some limits on how many past decisions will be reopened as a result.