Will the Supreme Court uphold the Chevron doctrine, under which courts defer to contested interpretations of law by agencies in the executive branch? Or will the high court instruct lower courts to determine the best reading of the law, as they do in virtually every non-agency case?
Those are the questions the Supreme Court must answer after hours of arguments Wednesday in Relentless v. Department of Commerce and Loper Bright v. Raimondo, two cases that challenge the Chevron doctrine.
Most of the justices sounded skeptical of the doctrine. But whether Chevron or any deference to agencies’ legal interpretations endures will depend on how the justices answer a host of subsidiary questions.
Both the Relentless and Loper Bright cases were brought by commercial fishermen challenging the National Marine Fisheries Service’s interpretation of a federal law called the Magnuson-Stevens Act.
When congressional funding for the Fisheries Service ran dry, the agency determined that the law allowed it to keep its at-sea monitoring program afloat by requiring fishermen to pay the salaries of the federal monitors aboard their boats. The fishermen argued that nowhere in the Magnuson-Stevens Act does it say that the agency could force them to bear the costs of monitoring.
Nonetheless, a split panel of the U.S. Court of Appeals for the D.C. Circuit invoked the Chevron doctrine to hold that the agency’s interpretation of a supposed silence in the law had been reasonable.
The commercial fishermen went to the Supreme Court to ask the justices to overturn one specific agency interpretation.
But the oral arguments focused less on the plight of the fishermen and more on the theoretical and historical problems besetting the Chevron doctrine.
The doctrine, adapted from the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, consists of a two-part test: (1) if the language of the statute in question is clear, then courts apply that clear reading to the case before them; but (2) if the statutory language is ambiguous on the disputed question, then courts must defer to any reasonable interpretation the agency gives to the ambiguity.
The problems with this approach? Well, they are legion, and the fishermen made sure that the court heard about all of them.
The determinative question of what counts as ambiguous in statutory terms turns out to be, in a word, ambiguous. Judges often disagree about whether a law is clear. There is no uniform way to determine whether statutory language, always somewhat limited and imprecise, is unclear enough to conclude that Congress intended to give agencies interpretive power.
Then there is the Chevron doctrine’s strange assumption that an implied delegation of power from Congress to the agency should be inferred not just from ambiguous language in statutes, but from supposed gaps or silences in statutes.
There is no requirement that Congress intended these gaps, of course. Often, they are mere accidents. After all, as advocates for the fishermen noted, Congress knows how to write laws that expressly give discretionary authority to agencies.
Nevertheless, the Chevron doctrine requires courts to make the grand but dubious assumption that, where statutes and agencies are concerned, gaps and silences are enough to create ambiguity and thus something indeed can come from nothing.
Constitutional concerns, distinct but related, also abound. Mandatory deference to agencies’ legal interpretations seems to aggrandize the executive branch, where most agencies are housed, at the expense of other branches. The courts are the obvious losers.
Article III of the Constitution vests courts with the whole of the judicial power, and they are expected to exercise independent judgment to determine the meaning of law. Yet under Chevron, the agency’s reading can trump a court’s view of the best interpretation.
Article II gives Congress the whole of the legislative power. Yet agencies’ Chevron-enabled activities look suspiciously legislative when they interpret their way to previously unknown powers that become binding on the liberty and property of private parties, as the Fisheries Service’s interpretation did here.
The concerns, however, don’t end with the separation of powers. Individual rights, specifically the Fifth Amendment’s guarantee of due process, is implicated insofar as the Chevron doctrine requires courts to favor one party to a dispute, namely the agency, over another.
History only adds to the kaleidoscope of issues. The Chevron decision, written by then-Justice John Paul Stevens, never articulated the two-part test. Nor is it clear that Stevens or his fellow justices thought at the time that they were changing the status quo in administrative law, which governs the activities of agencies.
Stevens never cited the key statute on point, the Administrative Procedure Act, and never referenced that law’s instruction that courts, not agencies, “decide all relevant questions of law.” The Chevron doctrine complicates, if not outright contradicts, that command; yet the Supreme Court never acknowledged the tension, suggesting that it never meant to affect a change.
But change is what Chevron wrought. For nearly 40 years, agencies have assumed the power to make disputed policy judgments under the guise of interpreting ambiguities in the law.
The more audacious agency actors have gone further still by reading gaps into laws that agencies then could fill with novel and invented powers that Congress never explicitly conferred.
All this is a far cry from agencies’ traditional responsibility to fill in certain details, such as application deadlines, that Congress neglected to write into law.
So, why should the Chevron doctrine survive the welter of criticism?
According to Solicitor General Elizabeth Prelogar, who argued for the government Wednesday, it is because the doctrine is a bedrock principle of administrative law upon which courts and Congress long have relied. Prelogar argued that the doctrine prevents courts from becoming entangled in policy questions that they are ill-equipped to address.
The justices spent much of their time probing the advocates on how to draw a consistent line between legal questions (in which courts are expert) and policy questions (in which agencies are).
The court’s Democrat-appointed justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—indicated that most of the tough interpretive questions were fundamentally policy decisions that courts should not attempt to answer.
Sotomayor, Kagan, and Jackson maintained that in many cases “the law runs out,” meaning that Congress has provided no specific guidance on a matter and would prefer that the relevant agency come up with an answer. As much as the three justices seemed to hold agency expertise in high regard, they hold low opinions of judges, whom, they assumed, couldn’t possibly know or learn enough to resolve technical disputes.
Attorney Roman Martinez and former Solicitor General Paul Clement, representing the fishermen, pushed back on all fronts.
The Supreme Court’s increasingly rigorous approach to statutory interpretation, Martinez and Clement argued, would keep lower courts from straying into raw policy determinations. Congress could not have any usable expectation about what interpretive gaps would receive judicial deference because the case law was wildly inconsistent.
And keeping the Chevron doctrine, far from promoting stability, only would perpetuate the regulatory whiplash created when presidential administrations change and new agency heads promptly reverse their predecessors’ decisions.
The high court’s Republican-appointed majority of justices seemed generally skeptical of Prelogar’s arguments. Still, there may not be a consensus among those six justices as to the extent of the problem posed by the Chevron doctrine.
Does the doctrine violate one or more provisions of the Constitution, or does it only run afoul of the Administrative Procedure Act? Is all deference legally problematic or only the deference formulated by the doctrine?
If express delegations to agencies by Congress are constitutional, why should the implied delegations undergirding the Chevron doctrine be inherently problematic? And even if they are, will overruling Chevron disturb too much existing law?
The magnitude of the eventual ruling in these cases hinges less on whether the Supreme Court overrules Chevron, an outcome that seems plausible, and more on what the court chooses to replace that regime with.
Nothing the court says in this case will stop Congress from expressly giving vast swathes of discretion to executive agencies. That is a separate problem.
Still, the court might, among other things, clarify the extent to which expertise—a value not mentioned in the Constitution—may act as a freestanding support to claims of authority, particularly those made with increasing frequency and stridency by the executive branch.
A ruling is expected by the end of June.
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