If the Supreme Court next term overrules Chevron USA v. Natural Resources Defense Council, its decision will crown a complete paradigm shift in the Supreme Court’s framework for the judicial review of agency interpretations of law. The era of “Chevron deference” will have been displaced by what ought to be called the era of “West Virginia skepticism.” The latter label would refer to West Virginia v. EPA, the decision in which the Court crystallized what has come to be called the “major questions doctrine” (MQD).
There is, to be sure, some parallelism in the structure of the two doctrines. In simplest terms, each is offered up as a two-step test. Under Chevron Step One, courts employing all the “traditional tools of statutory construction” are to first determine whether the disputed statutory text is legally unambiguous. If so, the agency wins if it follows the statute and loses if it does not. If a court finds that the statute is legally ambiguous, then, under Step Two, courts are to defer to any reasonable agency interpretation. Step Two, over the decades, has become essentially the equivalent of hard-look review to determine if the interpretation is “arbitrary or capricious.”
The West Virginia two-step does not start with the statutory text, but rather with an examination of the agency action under challenge. Step One determines whether an agency initiative raises a “major question” as to its legality. The Court has not much clarified how this determination is to be made, and a recent study by Natasha Brunstein of the Institute for Policy Integrity found that lower court “judges have taken vastly different approaches to defining and applying the doctrine—even within the same circuit—illustrating that many judges view the doctrine as little more than a grab bag of factors at their disposal.” Prominent among the common considerations is the “economic and political significance” of the challenged action, although the benchmarks for judging that significance remain unclear. (One disquieting possibility is that contemporary political opponents who lacked sufficient clout to influence the original legislation can now stir up enough protest to activate the “political significance” trigger.) What makes a court skeptical may be that the agency is using a statute in a new way or attributing more expansive meaning to a provision it had heretofore interpreted narrowly. Perhaps the agency’s action would extend its regulatory authority over areas beyond its usual reach or expertise. In any event, if the answer to Step One is affirmative, then Step Two requires that the agency show that its action had exceptionally clear authority, although, once again, it remains uncertain how “clear” such clarity must be.
What would be most remarkable about the substitution of the skepticism regime for the deference regime is that the deference regime is, in every respect, normatively superior. For example, as shown by the pioneering work of Abbe Gluck and Lisa Bressman, the Chevron doctrine represents a nearly unique example of an interpretive canon well known to and understood by the staff who draft legislation. Based upon their extensive survey, Gluck and Bressman concluded that legislative drafters (and presumably, their principals) comprehend that statutory ambiguity will leave interpretive room for agencies to fill. Awareness of Chevron functions chiefly as a reminder that deliberation over the scope of intended ambiguity is an important aspect of statutory drafting. By way of contrast, “clear statement rules,” in general, are largely unknown to the drafters: “Evidence of a feedback loop [between courts and Congress] for clear statement rules . . . was almost entirely absent” in the Gluck-Bressman study. Thus, Chevron aligns better with the actual practice of legislating than does the West Virginia search for exceptional textual clarity.
West Virginia also threatens to debilitate Congress’s ability to employ administrative agencies as first responders to new challenges and unforeseen circumstances. Consider the Court’s Term-end decision in Biden v. Nebraska, invalidating the Education Department’s targeted loan forgiveness program. The majority opinion is written as if MQD were unnecessary to the result; it might have been called a Chevron Step One case until Chevron cites became taboo. In the majority’s manipulative parsing of the statute, however, West Virginia skepticism is clearly on display. And following the majority’s initial exegesis, the opinion by Chief Justice Roberts then offers MQD as an alternative ground for denying the agency’s authority. In neither part of its opinion, however, does the Court give any weight to Congress’s decision in 2003 to add “national emergency” to “a war or other military operation” as a permissible ground for secretarial action. September 11, the emergency that first triggered enactment of the HEROES Act in 2001, resulted in the deaths of 2,996 people, and it is likely that several thousand more died because of illnesses engendered by the attacks. By way of contrast, COVID caused over a million U.S. deaths with an inevitably more devastating economic impact. Yet the majority opinion takes no account of the possibility that Congress’s intentional decision to broaden the circumstances appropriate for agency response might shed light on how broadly it would have intended to confer authority for the responsive tools it had authorized.
West Virginia, unlike Chevron, cuts off any inquiry as to the reasonableness of agency policy. Although Chevron deference makes room for the legitimating role of agency expertise and policy deliberation, the skepticism paradigm is more of a piece with the Roberts Court’s Seila Law and Arthrex decisions. They all advance the majority’s commitment to a too-formalist (and not authentically originalist) conception of the separation of powers. Its underlying implication is that administrative action is legitimate only if it embodies policy decisions made by Congress or discretionary judgments that can be traced back through a chain of command to the President. Modern administrative law, however, is built on the idea, well elaborated in the work of Jerry Mashaw among others, that the administrative state derives democratic legitimacy by combining legal authority with reasoned deliberation. In deferring to agency interpretations of law that are well-reasoned and reasonably implemented, it is the Chevron paradigm that more fully supports a rich and more compelling vision of democratic governance.
Chevron deference to agency interpretive authority does not relieve agencies of legal accountability for administrative action. Accountability exists, even assuming an agency prevails in its legal interpretation under Chevron, because the agency’s policy rationale and the empirical basis for its challenged initiative must still pass muster under hard look review. Significant rulemaking activity will often follow from extensive deliberation involving not only agency policy makers, but also economists, scientists, and other experts, along with representatives of interested parties and members of the public. An agency that, in theory, might have been legally authorized to employ a particular strategy of statutory implementation will nonetheless find itself blocked if it ignores key issues or resolves doubts without adequate explanation based on a factual record. Yet even the most conscientious agency, faced with West Virginia skepticism, may find that its deployment of expertise and deliberative policy development have gone for naught.
Where West Virginia enthusiasts implicitly claim superiority over Chevron is their insistence that the doctrine furthers values that are immanent in our constitutional separation of powers. MQD does much the same work as would an intensified nondelegation doctrine, preventing agencies from exercising legislative power by making “the basic and consequential tradeoffs” that ought supposedly to be made by Congress. There are reasons to doubt, of course, that the Framers would have been more concerned about excessive delegation than about replicating the legislative incapacities of the Articles of Confederation. But Chevron has at least an equal claim to serving the separation of powers. The focus of its underlying anxiety, however, is not usurpation by the executive, but rather overreach by the judiciary. Quoting its 1978 opinion in TVA v. Hill, the Chevron Court wrote: “The responsibilities for assessing the wisdom of . . . policy choices and resolving the struggle between competing views of the public interest are not judicial ones: Our Constitution vests such responsibilities in the political branches.” West Virginia skepticism encourages the opposite of judicial restraint.
An imperial judiciary may sound less scary than an imperial executive, but there are checks available against the executive that are not readily available against the courts. The executive’s ever-present need to seek funding from Congress gives Congress leverage over agencies even when Senate filibusters or divided government make substantive statutory amendment unlikely. Oversight hearings, confirmation battles, and the President’s need for congressional cooperation in enacting new legislation are also important sources of influence. In terms of protecting the constitutional allocation of government authority, the contest between Chevron and West Virginia is, at most (from an MQD point of view) a tie.
There is an intriguing respect in which the respective roots of the competing approaches resemble one another. Although Chevron deference has come to be coded in the legal culture as a tool of progressive governance, its birth was in a case chastising the D.C. Circuit for second-guessing a less stringent regulatory strategy of the Reagan Administration—not a progressive victory. And, although West Virginia was the first decision to depict MQD as a “thing,” Chief Justice Roberts had earlier and conspicuously used the “economic and political significance” of agency action as a reason for nondeference to the agency in King v. Burwell. The Court there upheld the Affordable Care Act scheme for subsidizing low-income purchasers of insurance over exchanges created by the federal government—hardly a blow to the administrative state. (King v. Burwell was, however, not a full-blown MQD case. Roberts used MQD-like factors only to justify treating the interpretation of the Affordable Care Act as a matter for de novo review.) Given this surprising history, it is tempting to hope that a paradigm shift towards West Virginia skepticism—even if consummated—will ultimately play out with only modest consequences. In the lower courts, Chevron seemed to make the biggest difference in its first years, before the Court made clear how broad was the scope for Chevron Step One. Over time, if agency actions begin to survive MQD—if MQD Step One turns out not to be what Justice Kagan called a “get-out-of-text free card”—West Virginia skepticism may also come to be seen as less outcome-determinative than it now threatens to be.
At this moment, however, it is hard to be entirely hopeful. The Brunstein survey concluded, “lower courts appear to read West Virginia . . . as providing vast discretion in applying the doctrine to reach outcomes that at least appear to align with the partisan preferences of the judge’s appointing president.” It has become all too easy in hot-button administrative law cases to find troubling examples of lower court judges seeming to garble even well-established doctrine to reach what look to be politically agreeable ends. The Roberts Court would be well advised to keep Chevron in place and to tame West Virginia skepticism through more disciplined guidance as to its application.
Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University’s Moritz College of Law, and Distinguished Scholar in Residence and Adjunct Professor of Law at NYU Law School. Professor Shane is grateful to his NYU colleague Noah Rosenblum and to his Governing for Impact colleagues Will Dobbs-Allsop, Anna Rodriguez, and Asher Morse for their feedback on an early draft of this essay.