Notice & Comment

What Loper Bright Enterprises v. Raimondo Means for the Future of Chevron Deference

Short Answer, per Justice Gorsuch: “Today, the Court places a tombstone on Chevron no one can miss.”

Today, in Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the Chevron deference doctrine — the command from a 1984 decision that courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Chief Justice Roberts, writing for a 6-3 Court, concluded:

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. 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. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

While federal courts were already moving in this anti-deference direction in recent years, I think it’s fair to say that Loper Bright marks the end of an era in administrative law. Let’s unpack the separate opinions and their implications for the future of administrative law.

The Merits

On the merits, the Court starts with core principle that courts should exercise “independent judgment” and then works through the various cases and seeks to reconcile them with that basic principle. In some ways, this is reminiscent of the Chief Justice’s approach to presidential removal power in Seila Law LLC v. CFPB. He takes the familiar chapters of the conventional story but reorders them to flip the narrative. Here, instead of starting with a pro-deference origin story, he starts with a pro-judiciary “independent judgment” story. And then he fits the various deference cases and developments into that narrative to conclude that there was no deference doctrine remotely similar to Chevron before the enactment of the Administrative Procedure Act (APA) in 1946.

Accordingly, when the APA says that “the reviewing court shall decide all relevant questions of law,” it really means no deference at all. The potential background deference doctrines purported to exist in 1946 do not overcome the APA’s plain language, and the scholarly commentary to the contrary is not persuasive. For what it’s worth, I’ve always found it a close call on the scholarly debates over what judicial deference looked like before the APA’s enactment. In my view, some sort of deference existed beyond the Chief Justice’s characterization, but not the bright-line rule Chevron established.

In concluding that Chevron deference is not consistent with the APA, the Chief Justice also rejects as misguided Chevron‘s presumption that Congress delegates by ambiguity law-interpretation authority to federal agencies:

Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers, as noted, anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. And even Chevron itself reaffirmed that “[t]he judiciary is the final authority on issues of statutory construction” and recognized that “in the absence of an administrative interpretation,” it is “necessary” for a court to “impose its own construction on the statute.” Id., at 843, and n.9. Chevron gravely erred, though, in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction—the tools courts use every day—is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.

Having read thousands of Chevron-related judicial decisions and interviewed and surveyed more than a hundred of agency regulatory lawyers, some of this paragraph is hard to square with reality. Not to mention congressional practice…. But I’ll leave that for another day.

The Role of Stare Decisis

In our amicus curiae brief in support of neither party in Loper Bright, Kent Barnett and I largely defended Chevron deference on stare decisis grounds, similar to how five Justices of the Supreme Court, including the Chief Justice, upheld Auer deference in Kisor v. Wilkie. I had expected a majority of the Court to do the same thing here. But I was obviously wrong.

On stare decisis, the Chief Justice deftly frames this as a judge-made doctrine that is in conflict with the plain text of the APA, such that we are not dealing with statutory stare decisis but a much weaker form of precedential weight. To do so, he has to kind of ignore the fact that he joined Kagan’s Kisor opinion (more below) that embraced a stronger version of stare decisis for Auer deference. From there, he focuses on how “[e]xperience has also shown that Chevron is unworkable.” The Chief Justice then quickly rejects any reliance interests, pointing out that Brand X allows agencies to flip-flop on prior regulations under Chevron.

On workability, the majority is not entirely wrong, as the Court has grafted on so many steps, exceptions, and confusions over the years. On the flipside, I’m confident the replacement “independent judgment” approach will not be more workable. Statutory interpretation in hard cases, by nature, involves a lot of judgment calls, and Chevron had basically said in close cases defer to the agency (in footnote 8, the Chief Justice cites our empirical work on the subject, but unfortunately he seems to misunderstand our findings on this point). Similarly, it was a bit disappointing that the majority didn’t grapple with the settled nature of Chevron and how the doctrine structures separation of powers and the relationship between the branches of government. These arguments were the main thrust of our amicus brief, and in my view the most compelling reasons for not overruling the precedent.

Finally, one of the biggest concerns expressed at oral argument was that overruling Chevron would open the litigation floodgates to challenge hundreds of prior agency statutory interpretations upheld by courts under Chevron. The Chief Justice attempts to keep the gates mostly closed:

By doing so, however, we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology. See CBOCS West, Inc. v. Humphries, 553 U. S. 442, 457 (2008). Mere reliance on Chevron cannot constitute a “‘special justification’” for overruling such a holding, because to say a precedent relied on Chevron is, at best, “just an argument that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266 (2014) (quoting Dickerson v. United States, 530 U. S. 428, 443 (2000)). That is not enough to justify overruling a statutory precedent.

I am not too confident this will do the trick, but time will tell.

The New Standard of Review

In eliminating Chevron deference, a critical question is what will be the replacement standard for courts reviewing agency statutory interpretations going forward.

In their merits briefing, both petitioners very carefully did not say what should replace Chevron. At oral argument, however, both embraced Skidmore deference as the replacement, which instructs that the “weight” of an agency’s interpretation “depend[s] upon the thoroughness evidence in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors ‘which give it power to persuade, if lacking power to control.” Perhaps not coincidentally, Skidmore was also the standard that Justice Gorsuch embraced in Kisor v. Wilkie to replace Auer deference to agency interpretations of their own regulations.

So many court watchers and administrative law scholars expected Skidmore — not de novo or plenary review — to replace Chevron if the Court had enough votes to overrule Chevron. In my view, the answer is not clear from the Chief Justice’s opinion. Let’s just say that the majority opinion is ambiguous, but perhaps the best interpretation is that the Court embraces de novo review — in particular, what the Court repeatedly calls “independent judgment.”

To be fair, there are hints of Skidmore-like weight to agency experience and reasoned decisionmaking in various parts of the majority opinion — about how Executive Branch interpretations might deserve “respect” or “inform the judgement of the Judiciary,” or how “courts may — as they have from the start – seek aid from interpretations of those responsible for implementing particular statutes.” But the majority’s bottom line doesn’t feel much like Skidmore deference or weight: “Careful attention to the judgment of the Executive Branch may help inform that inquiry.”

It will be fascinating to see how lower courts, federal agencies, and litigants interpret the Court’s guidance as to the new standard for judicial review of agency statutory interpretations. (Also on the blog today, Patrick Sobkowski seems to have a different take on whether the Court embraced a de novo standard of review in Loper Bright.)

[6/29/2024 Update: On the administrative law professor listserv, the growing consensus seems to be that the Court preserved some form of Skidmore deference. I’m still not entirely convinced, but perhaps my view is not the conventional one.

Adrian Vermeule also has a provocative post, entitled Chevron By Any Other Name, arguing that “Loper Bright delegation” is or at least could be basically the same as Chevron deference at the end of the day. I don’t agree with the strongest version of this argument, but I definitely agree that courts will conclude that the best interpretation of many statutory provisions is that Congress delegated policymaking authority to the agency to implement the broad statutory directive — to fill the regulatory gaps. And the inquiry turns from statutory interpretation to APA arbitrary and capricious review, which, as Dan Deacon pointed out yesterday, the Court seemed to further develop in its decision on Ohio v. EPA earlier this week. This is the point I tried to make over at Law and Liberty last month:

In a world without Chevron, one would expect judges to find it harder to separate their judging from their politics. I hope courts will strive to have the judicial humility necessary to continue to defer to agencies when Congress has so directed. And having read thousands of circuit-court decisions dealing with Chevron, Congress regularly does so direct:  Either the law runs out, or the best reading of the statute is that Congress has delegated broad policy discretion to the agency. Justice Kavanaugh’s concurrence in Kisor v. Wilkie comes immediately to mind (alterations mine):

To be sure, some cases involve [statutes] that employ broad and open-ended terms like “reasonable,” “appropriate,” “feasible,” or “practicable.” Those kinds of terms afford agencies broad policy discretion, and courts allow an agency to reasonably exercise its discretion to choose among the options allowed by the text of the [statute]. But that is more State Farm than [Chevron].

I’ll resist the temptation to update this post further, but I thought it would be prudent to note my take on Skidmore likely isn’t the consensus view among administrative law professors.]

The Thomas and Gorsuch Concurrences: Chevron Is Unconstitutional

Justice Thomas pens a short, four-page concurrence to say that Chevron is not just unlawful but also unconstitutional. (Justice Gorsuch reaches the same conclusion.) This would be important in the event that Congress tried to codify Chevron by amending the APA or by modifying specific agency organic statutes. Reading the majority’s opinion, it seems quite possible that the Chief Justice too would find Chevron codification unconstitutional if directly confronted with the question. Maybe.

I do not expect Congress to amend the APA anytime soon, though legislation is already pending to codify Chevron deference in the APA. But it is more possible that Congress could codify Chevron as to one regulatory regime when reauthorizing a particular agency’s governing statute. It has done so before.

In addition to concluding that Chevron is unconstitutional, Justice Gorsuch’s thirty-plus-page concurrence sets forth his view on the history of judicial deference in our separation of powers framework and argues that stare decisis actually commands Chevron‘s demise: “Stare decisis’s true lesson today is not that we are bound to respect Chevron’s ‘startling development,’ but bound to inter it.” If adopted broadly, Justice Gorsuch’s vision for stare decisis would lead to a dramatic changes in the strength of prior judicial precedents.

Justice Kagan’s Dissent: Kisor, Rinse and Repeat

Justice Kagan, joined by Justices Sotomayor and Jackson, dissent. Justice Kagan’s dissent is very reminiscent of her opinion in Kisor v. Wilkie, including an emphasis on “Who decides?” and the realties of legislative and regulatory practice. If one were to ask ChatGPT to rewrite Justice Kagan’s Kisor opinion to read as a dissent to the Court overturning Chevron, this is about what you’d get. And I mean that as a compliment, not criticism, as I think her Kisor opinion is top shelf.

Justice Kagan cites Kisor more than a dozen times, including for the Court’s approach there (joined by the Chief Justice) for stare decisis for judicial deference doctrines as well as for the massive disruption Chevron‘s demise will have on the regulatory system. She concludes with a quote from Chevron: “Judges are not experts in the field, and are not part of either political branch of the Government.” And she then writes what feels like a eulogy:

Those were the days, when we knew what we are not. When we knew that as between courts and agencies, Congress would usually think agencies the better choice to resolve the ambiguities and fill the gaps in regulatory statutes. Because agencies are “experts in the field.” And because they are part of a political branch, with a claim to making interstitial policy. And because Congress has charged them, not us, with administering the statutes containing the open questions. At its core, Chevron is about respecting that allocation of responsibility—the conferral of primary authority over regulatory matters to agencies, not courts.

My main quibble with the dissent is that I would have loved to see it grapple more with how Chevron has evolved over years and tackled head on the costs of the current deference regime — e.g., Brand X and regulatory flipflopping. One could still say the benefits outweigh these costs, of course. The same could and should be said about the majority opinion. In my academic career, I’ve written more than two dozen articles exploring various aspects of Chevron deference, and I have found many of the constitutional, APA originalism, doctrinal, and normative questions to be very hard ones. It’s somewhat disappointing to read four opinions in Loper Bright that seem to find no hard or close questions anywhere.

The Future of Administrative Law?

Loper Bright indeed marks the end of an era in administrative law. At this point, it is hard to predict the impact the ruling will have on administrative law and regulatory practice. Last month I penned a short essay over at Law and Liberty that raises a few questions I’m thinking about about in a post-Chevron world:

  1. Will federal judges still strive to say what the law is, instead of what it should be?
  2. How will the Supreme Court manage increased disuniformity in federal law?
  3. How will courts deal with prior judicial precedents based on Chevron?
  4. How will Congress respond, if at all?

These are just four of the dozens of questions that come to mind when imagining a world without Chevron. It will be interesting to see how Congress, federal agencies, litigants, and lower courts react to Chevron’s demise. On one thing I am certain: Kristin Hickman, Dick Pierce, and I have a lot of work to do to restructure our federal administrative law casebook.

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