Tomorrow the Supreme Court will hear oral argument on one of the most consequential questions presented this term—whether to overturn the procedural methodology established by Chevron v. Natural Resources Defense Council (1984). Under so-called Chevron deference, the courts abdicated their responsibility by deferring to federal agencies in the interpretation of “silent or ambiguous” statutory text, as long as that interpretation was “reasonable.” That invited agencies to exploit vague statutory language and stretch it beyond its original meaning when it was enacted.
The Court in recent years has avoided Chevron deference. It is disinclined to find statutory text ambiguous. In appropriate cases, it applied the “major questions doctrine” to overturn agency actions with broad economic and political significance in the absence of “clear congressional authorization.” But in the absence of an explicit overruling, lower courts do not have the luxury of considering themselves unbound by Chevron. That translates into arbitrary results from judges with very different conceptions of statutory ambiguity and a lack of assurance that litigants can find relief in court from harm at the hands of overreaching agencies.
The statute implicated in the two cases to be argued tomorrow, Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, is the Magnuson-Stevens Act. The law governs fishery management in federal waters and expressly authorizes the National Marine Fisheries Service under narrow circumstances to require fishing vessels to carry and pay federal observers who enforce agency regulations, subject to a salary cap at 2–3% of the value of the vessel’s haul. The agency claimed implicit power under the statute to compel a wide variety of domestic vessels to pay monitor salaries of up to 20% of their revenues.
These are not cases that present a “major questions” issue. They squarely call for the Court to confront Chevron deference—and indeed the question presented is whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the relevant statute does not constitute an ambiguity requiring deference to the agency.
Chevron deference has been a juridical embarrassment, enabling a federal agency takeover of the courts’ Article III power to interpret the law and of Congress’ Article I power to legislate. Beyond that constitutional objection, Chevron deference defies the Administrative Procedure Act of 1946, which clearly assigns the duty to interpret statutes to courts rather than agencies.
As a practical matter, agency heads confronted with federal statutes choose from several possible legal interpretations and do not necessarily pick the best one. Indeed, they do not typically make their choices based on interpretation in the first place. Eugene Scalia, who served as secretary of labor during the Trump administration, made this observation as he noted that “the officials whose interpretations receive deference seldom interpret.” Courts require agency heads or cabinet officials to make agency interpretation authoritative, but “the people actually doing the interpreting often are staff lawyers at a much lower level in the agency” while the senior officials typically choose among the legal options presented by those lawyers as a matter of policy rather than conduct their own legal analysis.
Judicial deference under such circumstances is farcical. Agencies routinely get away with 180-degree reversals of their prior interpretations, typically after a change in presidential administration. While serving on the D.C. Circuit, then-Judge Brett Kavanaugh charged in a 2016 law review article that “Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.” He observed, “In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” As Justice Clarence Thomas noted in his 2015 concurrence in Michigan v. EPA, what is often misidentified as an agency’s “interpretation” of an ambiguous statute could typically be characterized as “formulation of policy,” but even if that “fact might allow us to escape the jaws of Article III’s Vesting Clause, it runs headlong into the teeth of Article I’s” conferral on Congress of “[a]ll legislative Powers herein granted.”
Problems with the application of Chevron had been identified in 2013 by Chief Justice John Roberts, joined in dissent in Arlington v. FCC by Justices Anthony Kennedy and Samuel Alito. (Kennedy would call for the reconsideration of Chevron deference in his Pereira v. Sessions concurrence a week before announcing his retirement in 2018.) Because Chevron deference has proven so unworkable, the Court has had to modify it. As one law review article by Jack Beermann quoted in Loper Bright’s brief put it, “no one rationally orders their affairs in reliance on Chevron deference.” The erosion of Chevron deference in recent years weighs in favor of overruling it explicitly. Justice Neil Gorsuch, who had criticized Chevron in 2016 while serving on the Tenth Circuit, asserted in a 2022 dissent from denial of certiorari in Buffington v. McDonough that what he called “the aggressive reading of Chevron has more or less fallen into desuetude” and that “the whole project deserves a tombstone no one can miss.”
It is past time that the Court heed this call for clarity and overrule Chevron deference. Doing so would bring relief to countless citizens who are now at the mercy of unelected bureaucrats who are not subject to meaningful checks. It would be one of the Court’s most consequential victories for the separation of powers.