While reading Isaiah McKinney’s recent piece on Chevron v. Natural Resources Defense Council, I was struck by how different people can see the exact same facts and yet draw such wildly different conclusions from them. Where McKinney sees a problem with lower courts’ applying Chevron while the Supreme Court has relied on it less in recent years, I see lower courts doing exactly what they should be doing: Following Supreme Court precedent until a majority of the Court overrules it.
McKinney notes that the Supreme Court did not rely on Chevron in the 2021 Term and has not deferred to an agency’s reasonable interpretation of an ambiguous statute at Chevron step two in six years. But he also notes that the Supreme Court cited Chevron three times in the 2020 Term and has analyzed ten cases under Chevron since 2014—that’s ten times in less than ten years. These statistics aren’t too shabby considering the record low number of Supreme Court decisions in recent years and the fact that Chevron really matters only in a small number of cases at the Court in which (1) an agency (2) provides an outcome determinative and (3) legally binding interpretation of (4) an ambiguous statutory provision. Given all this, one might reasonably question the assumption that Chevron has been “effectively buried” at the Court, as Justice Gorsuch recently suggested in his dissent from the denial of a petition for certiorari in Buffington v. McDonough. Putting that aside, and even assuming that the Justices have become skittish about relying on or even referencing Chevron in recent years, a majority of the Court has not overruled the decision—one of the most relied-upon decisions in the Court’s history.
So what are lower courts to do in this situation? Continue applying Chevron. According to McKinney’s statistics, that is exactly what they are doing. And not just in a handful of cases, but lots of them—142 cases in the 2020 and 2021 calendar years alone. Even after the Supreme Court’s recent decision in West Virginia v. EPA, which many have cited as another example of the Court ignoring Chevron,lower courts have continued to apply Chevron. Most notably, just a few months ago, in Loper Bright Enterprises v. Raimondo, the D.C. Circuit, which sees more Chevron-prompting cases than any other court, did not hesitate to find that an agency’s interpretation was entitled to deference at Chevron step two. Contrary to Justice Gorsuch’s recent dissental in Buffington, McKinney’s statistics and even more recent lower court decisions show that the Federal Circuit’s application of Chevron in Buffington was not an “outlier” and Chevron itself has not “more or less fallen into desuetude”—as McKinney himself recognizes.
The upshot is that, despite growing calls from some on and off the Court to overrule Chevron, the only way to do so is for four justices to grant a petition for certiorari and five justices to issue an opinion explaining why Chevron—otherwise workable and relied upon dozens of times a year in the lower courts—is no longer entitled to stare decisis. (What that would mean for stare decisis is another matter.) Until then, lower courts should—indeed, must—continue to apply Chevron. Such adherence to binding precedent is not something to be lamented. It is a feature of the rule of law to be applauded.
Donald L. R. Goodson is a Senior Attorney at the Institute for Policy Integrity at NYU School of Law.