Reckoning with Chevron and everything after

In Loper Bright Enterprises v. Raimondo, No. 22-451, and Relentless, Inc. v. Department of Commerce, No. 22-1219, the Supreme Court will consider whether to overrule Chevron, U.S.A., Inc. v. NRDC (National Resources Defense Council), 467 U.S. 837 (1984). Chevron holds that when Congress has assigned responsibility for administering a statute to a federal agency, courts must defer to the agency’s interpretation if not inconsistent with the statute’s clear terms (Step 1) and reasonable (Step 2). One of the Court’s most-cited decisions, Chevron has been relied upon in more than a hundred Supreme Court cases and thousands more in the lower courts.

Loper and Relentless involve a National Marine Fisheries Service (NMFS) regulation providing that commercial fishing vessels seeking to catch more than 50 metric tons of Atlantic herring (classified by NMFS as overfished) must allow monitors on such trips, at the vessel owner’s expense, to gather data for conservation purposes. The Magnuson-Stevens Act expressly authorizes NMFS to require vessels to have monitors; the dispute is over whether NMFS may require vessel owners or operators to pay for the monitors’ work. The D.C. Circuit (Loper) and the First Circuit (Relentless) upheld the regulation; after granting cert in Loper, the Court granted in Relentless too and ordered the cases to be argued together in January—thus allowing Justice Jackson (recused in Loper) to participate.

The Loper petitioners are represented by former Solicitor General Paul Clement, and Relentless by conservative advocacy group New Civil Liberties Alliance. The numerous amici reflect how starkly debates over Chevron now mirror partisan divisions: for example, almost all Republican-led states are on petitioners’ side and almost all Democratic-led ones on the respondents’. On petitioners’ account, NMFS is stretching the statute to force small businesses to pay for their own surveillance; on respondents’, NMFS is simply asking for-profit enterprises that harvest tons of dwindling public resources to pay for needed conservation data.

The sole question presented is:

Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

Since President Obama’s second term, the Court has avoided discussion of Chevron even in cases in which it seemed plainly applicable, while also declining entreaties to revisit it. In Loper and Relentless, the Court notably declined to grant certiorari on questions presented in both cases concerning interpretation of the Magnuson-Stevens Act. Perhaps the justices are using limited cert grants to commit themselves to addressing Chevron by taking potentially dispositive—but narrower—statutory questions off the table.

There is much to say about these cases, but three questions seem especially salient:

Replacing Chevron with what?

A decision to overrule Chevron could mark a revolutionary break, or merely an incremental adjustment, depending on the Court’s rationale. Petitioners and amici urge that Chevron’s framework is unconstitutional because it “impermissibly transfers Article III judicial power and Article I legislative power to Article II executive agencies.” (They also claim it violates the Due Process Clause.) Separately, the challengers and amici submit that Chevron deference violates the Administrative Procedure Act’s review provision, which, they argue, requires that courts decide all questions of statutory interpretation de novo.

A decision accepting these arguments could profoundly alter American law and government, undermining hundreds of court decisions (including pre-Chevron ones), and casting doubt on countless acts of Congress enacted upon an understanding that Congress may delegate important matters of statutory interpretation and implementation to the expert agencies, including the power to make rules giving effect to Congress’s general statutory commands. This would likely cause significant disruption to government, to businesses, and to the public. If surviving judicial review requires accurately predicting how courts will make each interpretive judgment de novo, agencies could have little assurance that even the most carefully designed rules would survive judicial challenge.

A systematic weakening of federal administrative capacity may be a positive good (and indeed the goal) for today’s conservative critics of Chevron. It was not always so: As NRDC recounts in an amicus brief in Loper, Chevron itself approved the Reagan administration’s deregulatory reinterpretation of the Clean Air Act, and Justice Scalia was a fervent champion of Chevron. But right-leaning jurists and advocates have, since the Obama years, painted Chevron as inherently an enabler of big government, rather than merely of presidential election winners.

Given Chevron’s status as one of the Court’s landmark precedents and the practical difficulties of following the maximalist theories advanced by petitioners, some justices whose votes petitioners need may seek out narrower grounds for a decision. They have several options: One is to replace Chevron with a sliding-scale approach to deference turning on the persuasiveness and technical rigor of particular agency decision (cf. Skidmore v. Swift & Co., 323 U.S. 134 (1944)). Or, the Court could lessen Chevron’s reach with a rigorous “Step Zero” applicability test, along the lines of Chief Justice Roberts’ dissent in City of Arlington v. FCC, 569 U.S. 290, 312–28 (2013). A third approach would reaffirm Chevron but emphasize that application of Chevron requires 1. a thorough statutory analysis, and 2. meaningful, not perfunctory, “reasonableness” review. The Court followed a similar course in Kisor v. Wilkie, 139 S. Ct. 2400 (2019)—retaining, but tightening, its review standard for agency regulatory interpretation.

What role should the newly ubiquitous “major questions” doctrine have for the Chevron debate?

Under West Virginia v. EPA, 142 S. Ct. 2587 (2022), the major questions doctrine demands that agencies show clear statutory authorization in “extraordinary” cases where they claim novel and transformational authority. Insofar as this doctrine (in years past often characterized as an exception to Chevron) addresses instances where agencies are found to have greatly overestimated their statutory authority, the doctrine might seem to obviate some of the main arguments against the continued viability of Chevron deference. But justices favoring a strict rule of judicial supremacy as against the executive in statutory interpretation cases might be inclined to see the doctrines as complementary rather than mutually exclusive.

What of stare decisis?

Finally, these cases present stark questions about the doctrine of stare decisis—that is, the value of precedent. The Loper petitioners argue the Court has already quasi-overturned Chevron by failing to apply it (or even cite it) in recent decisions, and that stare decisis is inapplicable (or diminished) because Chevron is an “interpretive methodology” rather than a full-fledged precedent. The government counters that Chevron carries special precedential weight because of the myriad judicial decisions applying it, and extensive reliance on it by Congress, the executive, and regulated parties. To secure an outright overruling of Chevron, petitioners will likely need to persuade the Court that stare decisis does not apply with its usual force.