Notice & Comment

The (Judicially) Conservative Case for Keeping Chevron Deference

This coming Term, the Supreme Court will hear Loper Bright Enterprises v. Raimondo, which asks the Court to overrule Chevron deference. Last week, petitioners filed their opening brief on the merits, along with more than a dozen amici filing briefings supporting petitioners (collected here).

Today Kent Barnett and I filed our brief supporting neither party, in which we argue that the Court should not overrule Chevron. The brief is available here. Here’s the summary of the argument (footnote omitted):

In 1984, the Court clarified a core principle of administrative law: a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 842–43 (1984). Petitioners ask the Court to overrule Chevron. Amici urge the Court to decline this invitation for the following reasons.

I. As to Chevron, the pull of statutory stare decisis—which this Court has applied when asked to overrule its deference jurisprudence—is too strong to overcome. Over the last four decades, this Court has repeatedly reaffirmed Chevron, and the federal courts have relied on it in thousands of cases. Chevron has come to be understood as a judicial interpretation of the Administrative Procedure Act (APA). Congress has legislated against that Chevron backdrop and refused to enact numerous bills that sought to abrogate it. Indeed, Congress, federal agencies, the lower federal courts, and the public have all relied on Chevron. Moreover, the original understanding of the scope of judicial deference under the APA is at best muddled, and the constitutional arguments against Chevron are unpersuasive.

II. Chevron advances rule-of-law values in the modern administrative state. Aside from the conventional values of agency expertise, enhanced deliberative process, and more politically accountable policymaking, amici’s empirical scholarship sheds light on two less-appreciated values.

First, Chevron encourages stability in federal law. Because this Court reviews only a fraction of the hundreds of judgments concerning administrative interpretations of law each year, judicial review of agency statutory interpretations rests mostly with the courts of appeals. Chevron reduces disagreements among federal courts over policy-laden judgments and thus promotes national uniformity. Amici’s review of more than a decade of published court-of-appeals decisions mentioning Chevron demonstrates a nearly twenty-five percent-point difference as to the prevailing rate of agency statutory interpretations, depending on whether a circuit court does or does not apply the Chevron framework. Under Chevron, an agency’s nationwide policy implementation of a statute it administers is more likely to govern, as opposed to a patchwork scheme of potentially conflicting judicial interpretations across the federal courts of appeals with ideologically disparate panels providing their “best readings” of the statute.

Second, the findings from amici’s study underscore another significant and largely overlooked cost of eliminating Chevron: judges’ policy preferences would play a larger role in review of agency statutory interpretations. Amici’s empirical work demonstrates that Chevron has, to a substantial degree, succeeded in removing judges from policy decisions that Congress has delegated to agencies. By doing so, it has promoted stability in judicial decisionmaking across ideologically varied courts of appeals, increasing national uniformity and predictability in federal law.

In other words, amici’s findings demonstrate that, in a world without Chevron, the federal courts will be applying a far less workable standard when interpreting statutes that federal agencies implement.

III. In recent years, this Court’s approach to Chevron has already addressed the concerns Petitioners and others raise. The Court has instructed lower courts to take Chevron step one seriously, precluding deference when the statute is “clear enough.” It has suggested that Chevron step two should be a meaningful check on unreasonableness, including whether the agency’s interpretation is impermissibly arbitrary and capricious. And, of course, the major questions doctrine precludes Chevron deference—or regulatory activity at all—when an agency seeks to regulate certain major policy questions without clear congressional authorization.

As such, the meager benefits of overruling Chevron now do not outweigh the substantial costs.

The full brief can be read here.

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