In a recent post, the Cato Institute’s Isaiah McKinney presented empirical findings that, over the last three years, circuit courts applied the Chevron “two-step” 84.5% of the time when reviewing agency interpretations of their enabling statutes, with 59.2% of these cases proceeding to a deferential posture at Chevron step two. McKinney contrasted Chevron’s prevalence in the lower courts with the doctrine’s absence at the Supreme Court, which hasn’t employed the Chevron framework in six years. McKinney’s findings comport with prior research by Professors Kent Barnett and Chris Walker, who have suggested there may be “a Chevron Supreme” and “a Chevron Regular,” meaning that “Chevron deference may not have much of an effect on agency outcomes at the Supreme Court, but … it seems to matter quite a bit in the circuit courts.”
In this post, we argue that the government’s litigation strategy has played a crucial role in bringing about a vertical split over Chevron in the federal judiciary.
At the Supreme Court, the Solicitor General has been deemphasizing, and sometimes disavowing, the Chevron doctrine. Yet in these same controversies, the government had pressed for deference in the courts below. By strategically muting the government’s Chevron arguments, the Solicitor General decreases the likelihood the Supreme Court would employ (or even acknowledge) the doctrine, and the status quo is preserved. Meanwhile, government lawyers continue to encourage overbroad readings of Chevron in the lower courts, where “reflexive deference” continues to flourish. Regardless of whether this dichotomy reflects a coordinated strategy, the effect is to perpetuate the divide over Chevron in the federal courts.
The government’s disparate Chevron strategies were evident last term in American Hospital Association v. Becerra. In the D.C. Circuit, the government sought Chevron deference, and the court ruled in favor of the agency based on deference. But when the Supreme Court granted certiorari, the government treated Chevron like a liability. During the oral arguments, the Solicitor General went so far as to say, “I do not think Chevron is necessary in this case,” even though the court below had decided in the government’s favor on the strength of deference alone. Ultimately, the Court elided the Chevron doctrine in ruling against the government.
Something similar happened last term in Becerra v. Empire Health Foundation. At the Ninth Circuit, the government’s brief led with an argument for “heightened deference” under the Chevron framework. Before the Supreme Court, however, the Solicitor General once again muted her Chevron claim, focusing instead on how the Court should “uphold [the agency’s] interpretation simply because it is the better one, without addressing the additional weight due under Chevron.”
The government’s two-faced Chevron claims were further evident last term in National Federation of Independent Business v. Occupational Safety & Health Administration. At the Supreme Court, the Solicitor General’s brief mentioned neither Chevron nor deference. But before the Sixth Circuit, the Justice Department sought “substantial [Chevron] deference” in arguing the government was likely to win on the merits.
In Barton v. Barr, announced in 2020, the Solicitor General informed the Supreme Court that the government “does not claim Chevron deference on the question presented.” At the Eleventh Circuit, however, the Justice Department had argued its interpretation “is entitled to Chevron deference.”
County of Maui, Hawaii v. Hawaii Wildlife Fund, which was decided the same day as Barton v. Barr, is another controversy where the government did an about-face in its Chevron arguments. As amicus, the Justice Department told the Ninth Circuit that the agency’s interpretation “is entitled to Chevron deference.” But in the Supreme Court, the government’s amicus brief completely ignored the deference doctrine.
A year prior, in Preap v. Johnson, the Justice Department argued to the Ninth Circuit that the statutory text “is ambiguous” and the agency’s interpretation “is entitled to Chevron deference because it is a permissible interpretation of the statute.” Yet after the Supreme Court took the case, the Solicitor General pivoted to arguing that the agency’s “interpretation is unambiguously correct,” and an ancillary claim for Chevron deference was crammed into the brief’s final few pages.
Irrespective of whether the Justice Department is coordinating these inconsistent Chevron claims at different stages of litigation, the important point is that the dichotomous arguments facilitate a vertical split over Chevron. In the lower courts, Justice Department lawyers abet overbroad readings of Chevron. Yet if one of these Chevron controversies comes before the Supreme Court, the Solicitor General tries to take deference off the table. That, in turn, increases the likelihood that the doctrine will remain unchecked below, where judges remain receptive to calls for generous Chevron deference. Thus, the Justice Department is driving a vertical deference divide in the federal courts.
Given growing Chevron skepticism at the Supreme Court, the government’s dichotomous deference arguments may make for sound litigation strategy. But they are also somewhat cynical and certainly self-serving.
Stepping back, it bears noting that the Justice Department has always had a major hand in creating and perpetuating the Chevron doctrine. When Chevron v. NRDC came down, there is no evidence either the Court or the parties believed the decision to be remarkable. Only with time did Chevron become the most famous doctrine in administrative law.
Professor Thomas Merrill, who worked as Deputy Solicitor General during Chevron’s formulative years, has argued that the Justice Department played a major part in making Chevron into an “accidental landmark.” Describing that period, Merrill quipped that, “only a few months on the job, I joked to friends that I was the Deputy Solicitor General for Chevron, since it seemed that virtually every request from the Civil Division for appeal authorization or for Supreme Court participation was based on the need to expand or defend the Chevron doctrine.”
According to Merrill, “Chevron was regarded as a godsend by Executive Branch lawyers,” because “the opinion seemed to say that deference was the default rule in any case where Congress has not spoken to the precise issue in controversy,” which “describes (or can be made to seem to describe) virtually every case.” In other words, Chevron could mean that “the government should nearly always win.” Seeing its potential, Chevron “was quickly seized on as a kind of mantra by lawyers in the Justice Department, who pushed relentlessly to capitalize on the perceived advantages the decision presented.”
As government lawyers “urged that Chevron serve as the relevant standard of review at nearly every turn,” these arguments found a receptive audience in the D.C. Circuit, which hears more administrative law cases than any other circuit. After becoming a leading case at the D.C. Circuit—also known as the second highest court in the land—Chevron then “migrated back to the Supreme Court along with personnel who had previously served in the D.C. Circuit.” This “reverse migration” was “reinforced” by the Solicitor General’s relentless promotion of Chevron.
Now, as then, the Justice Department is driving the course of Chevron deference in the federal courts.
Beyond Merrill’s work, our conclusions resonate with the observations of another academic with a background at the Justice Department, Professor Chris Walker, who has noted how the federal government sometimes “strategically does not invoke deference doctrines.” (Professor Walker worked on the Civil Appellate Staff at the U.S. Department of Justice, and years ago explored these strategic considerations more in a short essay that presents “a playbook for agencies to win the deference lottery.”)
Further, our understanding of the Justice Department’s ongoing role in shaping the Chevron doctrine is at least consistent with findings reached by Professor William Eskridge and Lauren Baer in their well-known survey of deference doctrines at the Supreme Court. Specifically, Eskridge & Baer argued that the Solicitor General’s “failure” to raise Chevron deference is the “most important” explanation for why the Court fails to invoke deference regimes when they otherwise should apply (which occurs almost 75 percent of the time when Chevron should apply, according to the authors). And while they don’t read into the Justice Department’s litigation strategy, Professors Natalie Salmanowitz & Holger Spamann, in their critical replication of the Eskridge & Baer study, argued that the absence of Chevron claims in the Solicitor General’s brief “is a good indication that the Supreme Court did not have to address Chevron.”
William Yeatman is a senior legal fellow and Adi Dynar is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. This blog post was largely based on the Pacific Legal Foundation’s amicus brief in support of a petition of certiorari in Loper Bright v. Raimondo.