If the Court is being honest, it should allow a serious reexamination of decisions that allowed the government to exercise powers over citizens and businesses.
My column today looks at the challenges to the rule of Chevron v. Natural Resources Defense Council (1984) in two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, both of which were argued before the Supreme Court on Wednesday. Below, I’ll walk in detail through the highlights from the arguments.
The Court’s three liberals, predictably, all plainly want Chevron to stay. Justices Elena Kagan and Sonia Sotomayor both offered characteristic odes to the virtues of administrative expertise, while Jackson fretted that doing away with Chevron would lead judges into making too many policy decisions. These are ironic defenses for Chevron in the setting of the regulations challenged in Loper Bright and Relentless: The whole question is whether observers placed on the boats by rule must be paid for by the fishermen or by the government, where the statute doesn’t say. There’s no administrative expertise involved in deciding whether to make a regulated party pay the cost of a regulatory observer. That’s effectively an exercise of the government’s power to impose taxes and fees. It’s exactly the sort of decision that traditionally belongs to Congress, not the agencies.
The fate of Chevron lies instead in the hands of the six Republican-appointed justices. Here’s my nose count of where they are leaning:
Chief Justice John Roberts: Roberts sees himself as a judicial minimalist, even if this sometimes means that he prefers incremental approaches to eroding bad precedents. That strategy frequently ends up requiring more litigation and more judicial supervision to get to the same place in practice as a clean break with an unworkable or ill-considered doctrine.
Roberts didn’t quite tip his hand at argument, but as usual, he was probing whether the Court really needed to get to the big legal question. He pushed Paul Clement, arguing for the Loper Bright plaintiffs, on whether the statute was even ambiguous enough to raise a Chevron issue. That put Clement in the tight spot of arguing that his client’s case was strong, but not quite strong enough to justify ducking the Chevron question.
Is Chevron already dead? Roberts asked Roman Martinez, arguing for the Relentless plaintiffs, about the fact that the Court hadn’t cited Chevron in 14 years, and quoted Sixth Circuit judge Raymond Kethledge saying he’d never relied on Chevron (an observation that misses how often the doctrine comes up in the D.C. Circuit). “I just wonder how often this comes up,” Roberts mused: “Have we overruled it in practice even if we’ve . . . had to leave the lower courts to continue to grapple with it?” That’s an observation that cuts both ways: If the Court has abandoned Chevron and the lower courts haven’t gotten the message, that could just as easily be an argument for saying so openly without much hand-wringing about stare decisis, reminiscent of how Roberts dispensed with Korematsu v. United States with an aside, or how the Court finally interred Lemon v. Kurtzman.
Roberts, along with a number of the conservatives, had some concerns about how it would work if the Court replaced Chevron with Skidmore deference. The Court’s decision in Skidmore v. Swift & Co., (1944), which was largely the governing principle for four decades before Chevron, treated agency interpretations as worthy of deference only if the agency made a persuasive case that it was actually reading the law correctly. In other words, the agency’s view is given the respect due a coordinate branch of government, but the final decision is the court’s.
Justice Clarence Thomas: Thomas is always a reliable vote for reconsidering any precedent he thinks is wrong. He has been sharply critical of Chevron. His willingness to overrule bad decisions extends even to his own opinions. One of the major Supreme Court cases that relied on Chevron was National Cable & Telecommunications Ass’n v. Brand X Internet Services (2005). Thomas wrote the Brand X opinion, but has since called for its overruling. The plaintiffs and the Court’s conservatives repeatedly mentioned Brand X as a poster child for how Chevron allows agencies to flip-flop in their legal interpretations, leading to successive administrations switching course repeatedly on the legal underpinnings of net neutrality.
Clement and Justice Amy Coney Barrett both cited Brand X an example of why the Court could not accept Solicitor General Elizabeth Prelogar’s invitation to revise rather than discard Chevron. Clement argued that “Brand X is a huge embarrassment for the government” and was cited by only two out of 13 pro-government amicus briefs, an attitude he characterized as: “Gosh, it would be nice for that decision to just go away, wouldn’t it? Wouldn’t it?” Barrett quipped in response, “Sorry, Justice Thomas.” Thomas’s distinctive booming laugh could be clearly heard over the rest of the chuckles in the courtroom.
Thomas pushed back at Prelogar’s effort at an originalist argument that deference to agencies has a long history. Prelogar has analogized Chevron to 19th-century decisions in which a writ of mandamus was sought against some executive action. Those decisions applied a deferential standard of review, but Thomas agreed with the plaintiffs that this had more to do with the longstanding doctrine that a writ of mandamus is an extraordinary remedy — a doctrine that doesn’t apply when there’s a federal statute allowing the courts to decide the legality of executive actions.
Thomas also raised the issue of Chevron not addressing the Section 706 argument, and helped pin down Prelogar’s concession that the government doesn’t think Chevron deference applies to constitutional questions. He even asked Prelogar whether she thought Congress could “require deference on the part of the court with respect to constitutional issues?”
What concerned Thomas more in the argument was what should replace Chevron. He asked Martinez, “how do we determine how much deference is too much deference? . . . How do we know where the line is?”
Justice Samuel Alito: Alito is the master of cornering advocates into sinking their own cases with either concessions that give away the store or extreme positions that show why their argument goes too far to be accepted. He didn’t quite have one of those moments this time, but he also didn’t make life easy for the advocates.
The case for stare decisis is weaker when the justices conclude that a decision was wrong the day it was decided. Alito asked Martinez and Clement why Chevron had been popular when it was first decided with those who expected it to take courts out of making policy decisions: “Were they wrong then? And if they weren’t wrong then, what, if anything, has changed since then?” He was more than a little sarcastic in asking Martinez if it was really possible to resolve the meaning of statutes without running into inevitable ambiguities:
Do you think that the canons of interpretation that we have now and all of the other tools that we have in our statutory interpretation toolkit are like the Enigma machine and so we have these statutes and they’re sort of written in code and we run them through the Enigma machine and, abracadabra, we have the best interpretation? Do you really think that’s how it works?
But Alito saved his heaviest artillery for Prelogar in exposing how her definition of “ambiguity” would mean one thing in a case with an agency rule and another thing in a case without one. A sample of their lengthy exchange on this point:
ALITO: Can you provide a concise definition of what “ambiguity” means in this context?
PRELOGAR: Ambiguity exists when the court has exhausted the tools of interpretation and hasn’t been able to arrive at confidence that there is a right answer that Congress spoke to the issue.
ALITO: Well . . . in cases that don’t involve an agency, we never say we have exhausted all of our tools of interpretation and we just can’t figure out what this means. So that would seem to suggest you never get to step two [of the two-part Chevron test].
PRELOGAR: But the relevant question at step one is whether Congress is, in fact, resolving it or delegating it to the agency. So I agree that in a circumstance where you don’t have an agency, the Court can’t give effect to any delegation . . .
ALITO: What I heard you say the first time was it’s when we’ve used up all our tools and we can’t figure out what it means, then it’s ambiguous. So do you want to provide an alternative definition? . . . I really would just like a definition so that all the courts that have to apply the regime that you’re advocating will be able to apply it in the many different cases that come before them.
PRELOGAR: The Court gave this definition in Kisor five years ago . . .
ALITO: And what is it?
PRELOGAR: When a court has used or exhausted the tools of interpretation and doesn’t believe that it reveals a right answer. In that circumstance, Chevron said the right way to think about that statute . . . there is a delegation.
ALITO: So I think you’ve got to provide a different definition . . .
He never got one.
Justice Neil Gorsuch: Gorsuch has long been the Court’s fiercest critic of Chevron, which is ironic because — as Martinez noted at the argument — the Chevron decision was a victory for the Reagan-era Environmental Protection Agency, and its head at the time was Gorsuch’s mother. But if Thomas could put his principles above his own writings, Gorsuch could do the same with regard to his own mother.
Gorsuch didn’t like Prelogar’s definition of ambiguity, which he found to be not just flawed for the reasons Alito identified but also inconsistent with standards proposed by the government in prior cases: “Should that be a clue that something needs to be fixed here, that even the federal government at the podium can’t answer the question what triggers ambiguity?” He was also unpersuaded by the suggestion that Chevron could be revised or clarified rather than ditched: “We’ve done that, like, 15 times over the last eight or ten years, say, really, really, really, go look at all the statutory tools? And yet, here . . . lower-court judges even here in this rather prosaic case can’t figure out what Chevron means.”
Gorsuch was the justice most focused on how Chevron means that “the agency always wins . . . the immigrant, the veteran seeking his benefits, the Social Security Disability applicant, who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote, generally speaking . . . I didn’t see a case cited, and perhaps I missed one, where Chevron wound up benefitting those kinds of people.”
He brought his own Shakespearean sarcasm as well, drawing laughs from the courtroom in discussing how Chevron promotes instability in the law: “Brand X is a recipe for instability, isn’t it, because each new administration can come in and undo the work of a prior one. They’re all reasonable. I mean, my goodness, the American people elect them. Of course, they’re reasonable people.”
At the same time, Gorsuch pointed the way to a narrower resolution of the case that would rule against Chevron as a violation of Section 706, without reaching the constitutional question.
Justice Brett Kavanaugh: Justice Kavanaugh is often the swing vote these days, and he seems likely to be a crucial vote here. He, too, told Prelogar that he saw “an internal inconsistency in Chevron itself”:
If you use all the traditional tools of statutory interpretation, you’ll get an answer, and we know that because, in cases where we don’t have an agency involved and we use those same traditional tools, we get an answer. . . .
Do you think it’s possible for a judge to say, the best reading of the statute is X, but I think it is ambiguous, and, therefore, I’m going to defer to the agency, which has offered Y? . . . That can’t happen? I think that happens all the time.
He was also singing from the same hymnal as Gorsuch on legal instability and executive overreach:
You say don’t overrule Chevron because it would be a shock to the system, but the reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in . . .
He also pushed back at Jackson’s concerns about judicial overreach, citing the countervailing dangers of executive overreach:
[New administrations change the rules] because they have disagreement with the policy of the prior administration and they’re using what Chevron gives them and what they can’t get through Congress to do it themselves, self-help, and to do it themselves unilaterally, which is completely inconsistent with bicameralism and presentment to get your policy objectives enacted into law. . . .
It’s the role of the judiciary historically under the Constitution to police the line between the legislature and the executive to make sure that the executive is not operating as a king . . . the other concern for any judge is abdication to the executive branch running roughshod over limits established in the Constitution or, in this case, by Congress. So I think we’ve got to . . . find the right balance between restraint and letting the executive get away with too much.
But Kavanaugh also seemed to be the strongest advocate for deciding the case on statutory rather than constitutional grounds, asking Martinez, “Why would we reach [the constitutional issue]? If we agreed with you on overruling Chevron on other grounds, I don’t see the need to address the hypothetical that Justice Kagan raised about Congress passing a Chevron-type regime.”
Justice Amy Coney Barrett: The most junior member of the Court’s conservative wing was also not persuaded by Prelogar’s effort to define “ambiguity”: “Having a best answer suggests that you engaged in a question of statutory interpretation, came up with your best answer, and it might just be really hard.” But Barrett was the most heavily focused of all the justices on the stare decisis question, including the “disruptive consequences” of overruling Chevron. She wasn’t really buying Martinez’s effort to argue that Chevron could be overruled without reopening the meaning of every statute the courts had previously read under Chevron: “Maybe nothing happens immediately to those cases, but isn’t the door then open for litigants to come back” and challenge what the language means: “Isn’t it inviting a flood of litigation even if for the moment those holdings stay intact?” After all, she worried, if all the Court had done before is say that a reading of a statute is “reasonable,” it never really decided what it actually meant.
That, in her view, is a distinction from the example offered by Clement, which is how the Court has addressed implied causes of action. Before the late 1970s, the Court was promiscuous in allowing private civil lawsuits under federal statutes even if Congress never said that the law created a right to sue. Since then, the Court has changed its approach, but it treats as stare decisis any prior decision creating a particular right to sue under a particular statute. My old area of practice, civil class actions under Section 10(b) of the Securities Exchange Act, still exists entirely because of this distinction.
Barrett is not wrong: If the Court is really being honest, it should allow a serious reexamination of decisions that allowed the government to exercise powers over citizens and businesses that it may not have. The implied cause of action approach is not entirely principled. And with a liberal majority on the D.C. Circuit, anything that reopens past decisions probably produces some results that cry out for Supreme Court review.
You can never tell for certain from oral arguments, but if I was a betting man, I’d say that Kavanaugh pulls the Court toward overruling Chevron on statutory rather than constitutional grounds, and Roberts and Barrett pull the opinion in the direction of limiting the vulnerability of prior Chevron decisions to reexamination. That might not be completely satisfying in terms of either theory or outcome, but it would nonetheless be a major victory.