Chevron Deference: The Brief - Top News of Today From Bloomberg Law
The principle, established by the high court in a landmark Reagan-era environmental case, directs courts to defer to reasonable agency interpretations when statutes they administer are silent….
The Brief - Top News of Today From Bloomberg Law
Sunday, March 24, 2024
CONSERVATIVES have been after the US Supreme Court for years to end Chevrondeference, a bedrock doctrine of administrative law that can affect how government regulates everything from tax policy and environmental protection to health and safety. They may get their wish before the end of June.
The principle, established by the high court in a landmark Reagan-era environmental case, directs courts to defer to reasonable agency interpretations when statutes they administer are silent or ambiguous.
It’s one of the most-cited Supreme Court decisions in history. Courts have regularly used Chevron deference to side with federal agencies in regulatory disputes. A judge invoked it to uphold Donald Trump’s ban on bump stocks. Barack Obama leaned on it to defend a rule encouraging states to adopt more renewable power. But Chevron and rulemaking writ large have become intertwined with the political divide in America, leaving the federal regulatory process on the edge of a precipice.
Progressives arguing for preservation say Chevron allows policy experts, not generalist judges, to make difficult and often technical determinations. Legal critics of deference say the judiciary abdicates its role in interpreting law. Conservatives and other opponents say it hurts business and is a tool for bureaucrats to carry out the agenda of what they call the progressive-led administrative state.
The business-friendly Supreme Court under Chief Justice John Roberts has chipped away at Chevron. That’s made it easier for corporate interests to challenge regulations they deem unwarranted and costly — but corporate America isn’t satisfied. “Businesses cannot effectively plan for the future when agencies are free to unilaterally change the basic rules at any time,” the US Chamber of Commerce argued in a brief.
THE DISPUTE before the justices involves a regulation that would require commercial fishing operations to pay for government-approved conservation and management monitors aboard some Atlantic herring boats.
The challengers in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce — family-operated fishing companies — contend the National Marine Fisheries Service overstepped because Congress never gave it authority to force businesses to pick up the tab for monitoring. Lower courts applied Chevron deference in backing the agency.
‘The Tie’: Litigator Paul Clement, who represents a group of challengers, told the justices at argument in January that “there is no justification for giving the tie to the government” in regulatory disputes.
‘A Tombstone’: Justice Brett Kavanaugh, reflecting the conservative supermajority’s skepticism at argument, said Chevron has fostered legal instability. Justice Neil Gorsuch, another chief skeptic, suggested individual litigants, such as immigrants or veterans, challenging government rules stand little chance of success when deference is applied. Chevron, he wrote in 2022, “deserves a tombstone no one can miss.”
Liberal Justice Ketanji Brown Jackson said she saw Chevron as “doing the very important work of helping courts stay away from policymaking.” Justice Elena Kagan, for example, said overturning Chevron risked forcing courts to decide artificial intelligence matters better left to agency experts.
‘Different Takes’: The Biden administration wants the court to leave Chevron alone. Solicitor General Elizabeth Prelogar said at argument that scrapping it would breed greater uncertainty. “There are 800 district court judges around the nation, and I think it’s fair to say they will likely have different takes about what to do,” she said.
FALLOUT from the court’s ruling will depend largely on what the Supreme Court does, including what, if anything, would replace Chevron.
If Chevron is gutted or killed off, legal experts warn of disruptive changes to regulations across the federal bureaucracy — particularly if the ruling is retroactive. It would mean ballooning caseloads for judges overseeing technical disputes in areas such as environment and finance, and a marked increase in the number of records trial court judges would need to review.
‘Flood of Litigation’: Another conservative, Justice Amy Coney Barrett, repeatedly voiced concern about the potential for legal upheaval, alluding during arguments to the more than 15,000 court cases citing Chevron. “Maybe nothing happens immediately to those cases, but isn’t the door then open for litigants to come back?” she asked, envisioning a post-Chevronlandscape. “Isn’t it inviting a flood of litigation, even if for the moment those holdings stay intact?”
In a world without Chevron, agencies would “need to be more conservative with their rulemaking,” said Beth Neitzel, a partner at Foley Hoag. Otherwise, they may be forced to reconsider major policies as courts, no longer deferring to their interpretations, strike them down.
“It will be open season on agency interpretations in many statutes, leading to a lot of instability, a lot of litigation, a lot of uncertainty,” said Jody Freeman, a Harvard Law School professor who specializes in administrative and environmental law.
The Replacement? The conservative supermajority signaled that an old doctrine known as Skidmore could be the future, even though a consensus eluded them about what that could mean. From 1944’s Skidmore v. Swift, the standard generally says an agency’s interpretation of a statute is only entitled to deference from courts if it is persuasive.
—Written by Kimberly Strawbridge Robinson