Notice & Comment

Chaos and Chevron in the Backyard, by Patrick J. Sobkowski

Today, the Supreme Court decided Loper Bright Enterprises v. Raimondo which overruled Chevron v. NRDC. John Roberts, writing for a 6-3, ideologically divided court, held that Chevron Deference is not compatible with § 706 of the Administrative Procedure Act. The decision comes in the wake of SEC v. Jarkesy, in which the Court held that the Seventh Amendment entitles defendants to a jury trial in SEC civil enforcement actions. Beau Baumann and Allen Sumrall have an excellent essay on that case here. In this essay, I’d like to build on some themes from a post written last year in the wake of Biden v. Nebraska

In 2023, nearly to the day, I argued that the Court has decided to use the Major Questions Doctrine as a next-best, less radical, option to reviving the nondelegation doctrine. Why is the MQD less radical? Because it’s a tool of statutory, rather than constitutional, interpretation. The move allows the Court to avoid broader criticism for reviving a defunct doctrine. Second, the MQD was an exercise in strategic ambiguity. Instead of prohibiting delegation wholesale per the nondelegation doctrine, the MQD simply requires “clear Congressional authorization” for the desired regulation. Put differently, the MQD does not cripple the administrative state at all. It simply requires Congress to speak clearly. It also allows the Court to relax while the lower courts and litigants fight about the details. It’s a win-win for the Court.

Loper Bright is much of the same strategy. Roberts’ majority opinion begins with a lengthy summary of the framers’ views on the judicial role, complete with the usual citations to Marbury v. Madison. But the actual holding of the Court is based on a slightly narrower, statutory ground. The majority held that Chevron “cannot be squared” with § 706 of the APA, which says that federal courts should “decide all relevant questions of law.” For Roberts and the majority, the APA requires courts to interpret ambiguous statutes for themselves; not to accord deference to agencies. The important takeaway is that, despite the opening paean to Marbury and the founders, the Court did not explicitly couch its overruling of Chevron in Article III. Similar to using the MQD rather than the nondelegation doctrine, this gives the Court some cover for overruling a 40-year-old precedent—it’s not a grand constitutional decision. More importantly, the practical effect is that the federal courts, and particularly the Supreme Court, have final interpretive authority over the meaning of a statute, and therefore whether the regulation in question is valid or not. It’s a new, new judicial power grab

Chevron was decided in 1984. In the 40 years since, the case has been cited 7,659 times according to Westlaw (and Orin Kerr). Chevron undergirded a massive deference regime with significant impacts on how the circuit courts decided cases and how governance worked. This means that the lower courts are now without a significant guidepost in reviewing agency action. The majority offers some potential guidance, citing to Skidmore:

Courts exercising independent judgment in determining the meaning of statutory provisions, consistent with the APA, may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes.

And later:

And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.

Ostensibly, these two excerpts mean courts can look to input from agencies when interpreting a statute—the majority doesn’t clearly say. But the reality is lower courts will need to scramble to pick up the pieces and fashion a way to adequately review regulations. Much like the MQD, the burden of Chevron’s absence falls on the shoulders of the lower courts, as well as Congress and the Executive Branch. For its part, the Supreme Court can now sit back and relax while litigants challenge regulations, the district and circuit courts engage in damage control, and Congress and agencies decide how to operate within this new paradigm. The Court can then pick and choose which patchwork regime it desires. On the other hand, the Court could simply move forward without regard to the lower courts and create its own preferred framework. The majority creates confusion on at least two levels. First, there’s the core framework issue. Second, how do we know when a statutory delegation is “consistent with constitutional limits?” We don’t have the answers. But there’s confusion and chaos for Congress, the Executive Branch, lower courts, and litigants that the Supreme Court has claimed the sole power to clarify and resolve.

I am not yet prepared to speculate on what will replace Chevron. I don’t think anyone is. The majority’s citation to Skidmore offers a small hint and suggests that de novo review is not the Court’s desired standard. But the hint raises as many questions as it answers. For example, as Nick Bagley pointed out, it is not always clear whether Congress intended to delegate authority to an agency. What’s a court to do in such an instance? The answer, I think, is “figure it out on your own until we tell you otherwise.” It is not difficult to imagine different circuit courts articulating wildly different frameworks. At the extremes, one can imagine how the Ninth Circuit might approach the issue as opposed to the Fifth Circuit. This has become a recurring, disturbing theme in the Roberts Court’s separation of powers jurisprudence. To Borrow from Elena Kagan’s dissent, the majority in Loper Bright “disdains restraint, and grasps for power.” 

Like the MQD, the absence of Chevron allows the Court to curb administrative power on primarily statutory—rather than constitutional—grounds. This is not an accident. For the time being, I am prepared to say that some new deference regime will replace Chevron. A workable government requires it. The question is: what are the contours of that regime and just how deferential will the Supreme Court allow it to be? 

Patrick J. Sobkowski teaches in the political science department at Marquette University. He welcomes all comments via email.

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