Supreme Court Charts New Course in Sea Change for Administrative Law
Jack Fitzhenry / GianCarlo Canaparo /
A few fishermen just brought about a sea change in administrative law. In Loper Bright v. Raimondo and Relentless v. Department of Commerce, herring boat owners took aim at a mainstay of the Supreme Court’s administrative law jurisprudence: the doctrine of Chevron deference that required judges to defer to executive branch agency interpretations of ambiguous laws.
On Friday, the fishermen prevailed before the high court in a 6-3 decision authored by Chief Justice John Roberts that was joined by all the Republican appointees. Roberts’ holding was as pithy as it was clear: “Chevron is overruled.” Now, federal judges will steer a different course when interpreting laws in agency cases: to “exercise independent judgment in determining the meaning of statutory provisions.”
Chevron was a “cornerstone of administrative law,” as Justice Elena Kagan noted in her dissent, which was joined by the other two Democratic appointees. And however contestable the rest of her opinion is, on that at least point she is surely correct.
The doctrine held sway in administrative law for nearly forty years, developing from the 1984 decision in Chevron v. Natural Resources Defense Council into a distinctive two-part test: (1) if the language of the statute in question is clear, then courts apply that clear reading; but (2) if the statute is ambiguous or silent on the disputed question, then courts must defer to any reasonable interpretation the agency gives to resolve the ambiguity, even if the same agency in different administrations interprets that statute differently.
Chevron deference rested on a theory that whenever Congress left a gap or ambiguity in a law, Congress would prefer that agencies rather than courts resolve the open question. Why? Supposedly because agencies were subject-matter experts and, unlike federal judges, agencies were politically accountable by dint of presidential control.
For decades, Chevron deference was the jurisprudential equivalent of fertilizer for the administrative state, with agency interpretations enjoying a 70% win rate in cases filed by regulated parties challenging the agency’s statutory interpretation.
The doctrine’s highwater mark came in 2013, when the late Justice Antonin Scalia authored a majority opinion in City of Arlington v. FCC holding that agencies’ determinations of their own jurisdiction were entitled to Chevron deference. Roberts authored a dissent in that case in which he vigorously contested the majority’s extension of Chevron: “[T]he question whether an agency enjoys that authority must be decided by a court, without deference to the agency,” he maintained.
From that point onward, Chevron encountered headwinds. Judicial paeans to agency expertise and accountability failed to obscure the reality that agencies operated without much oversight and that their sometimes wild shifts in policy had nothing to do with changes in expert knowledge. While lower courts continued to defer under Chevron, the Supreme Court last did so eight years ago in 2016 despite myriad invitations and opportunities to do so.
Then, into the picture sailed the fishermen behind these cases, challenging the National Marine Fisheries Service’s interpretation of the Magnuson-Stevens Act. That law requires fishermen to allow federal monitors aboard their boats during fishing trips. When federal funding for the monitor program ran dry, the Fisheries Service determined that a gap or silence in Magnuson-Stevens permitted the agency to require the fishermen to pay the salaries of the federally required monitors aboard their vessels. A divided panel of the D.C. Circuit invoked Chevron deference to uphold that interpretation, reasoning that the Fisheries Service offered a reasonable interpretation of an ambiguous law.
The Supreme Court, which had kept its distance from Chevron for years, decided that these cases afforded the opportunity to scuttle the doctrine. Chevron, Roberts explained, bound courts to accept the executive branch’s legal interpretations even when judges believed that a more faithful interpretation was available. That prompted the majority to hold that Chevron was irreconcilable with Congress’ command in the 1946 Administrative Procedure Act that courts decide “all relevant questions of law.” That command followed naturally from deep rooted understandings of the judicial power to interpret law dating back to the nation’s founding. Roberts suggested that deference is in tension with the very nature of the judicial power vested by Article III of the Constitution, but only Justice Clarence Thomas, who concurred separately, was willing to say so explicitly.
The majority also took dead aim at the popular pro-Chevron argument that agencies ought to resolve ambiguities in the laws that apply to them because agencies, unlike courts, have expertise in the policies covered by the statutes. But as Roberts explained, the ambiguities on which agencies rely often have nothing to do with technical matters. Moreover, courts, not agencies, are experts in legal interpretation.
Given his City of Arlington dissent, it’s not surprising that Roberts assigned himself the task of writing Friday’s opinion. The themes animating that dissent reappear in his Loper Bright majority, specifically his assertion that courts fulfill their judicial duty by “fixing the boundaries of [the] delegated authority,” to agencies and by “polic[ing] the outer statutory boundaries of those delegations, and ensur[ing] that agencies exercise their discretion consistent with the APA.” Roberts has finally won the debate he lost in 2013.
To non-lawyers, the proposition that judges should use their best independent judgment to interpret a law will sound utterly unremarkable. That is, after all, exactly what judges do in most every case where an agency is not a party. The preferential treatment agencies received as parties to litigation prompted some commentators to argue that Chevron deference violated the Fifth Amendment’s due process guarantee. The court did not need to take up that argument to set Chevron aside. But the commonsense appeal of the notion that judges should be impartial when ruling makes it harder to make sense of the complaints lodged by Kagan and her fellow dissenters, Justices Sonia Sotomayor and Ketanji Brown Jackson.
Kagan excoriates her colleagues in the majority for overturning longstanding precedent. This critique has lately become a mainstay of the dissents authored by the court’s three Democrat-appointed justices. But that supposed disregard for precedent takes on greater significance here, because Kagan sees the decision as merely one instance of motivated reasoning in the majority’s broader project of dismantling the administrative state. She has made similar accusations before, for instance, in her dissent from the court’s major-questions holding in West Virginia v. EPA.
Despite the strident debate over stare decisis, the heart of Kagan’s argument is more pragmatic than legal. Kagan sees deference to policy experts as the very essence of modern government. Formal restraint on the flexible dynamism of the executive branch is intolerable because it represents an outmoded view of government that she thinks should be consigned to the nineteenth century.
Kagan is far from alone. Just one day prior, when the court held in SEC v. Jarkesy that administrative agencies are bound to respect the Seventh Amendment’s jury guarantee, Kagan joined Sotomayor’s dissent rejecting that constitutional protection as an unnecessary constraint on “modern-day adaptable governance.”
At bottom, the three Democrat-appointed justices saw Chevron as a doctrine of judicial “humility” that kept courts out of the policy arena reserved to the political branches. But a view of humility that treats restraint as the judge’s paramount virtue intentionally deprives the court of any role in the maintenance of the separation of powers.
In the last forty years, executive branch agencies have accrued an impressive array of prerogatives often with judicial assistance or at least judicial acquiescence. For some, Chevron came to represent the sum of all those dubiously legal acquisitions. In reality, it was but one facet of the broader project of governance by the executive branch.
In the wake of this decision, Congress can still delegate broad swathes of authority to executive agencies provided it does so clearly. Still, the importance of Friday’s ruling should not be gainsaid. With Chevron gone, one can hope to see greater stability, a little more modesty in agency interpretations of law, and perhaps a little more clarity from Congress.