On June 28, 2024, the Supreme Court of the United States issued
a landmark decision overturning its prior decision Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., et
al., 467 U.S. 837 (1984)
("Chevron").Loper Bright Enterprises, et al.
v. Raimondo Secretary of Commerce, et al., and Relentless
Inc., et al. v. Department of Commerce, et al., 603 U.S. ___
(2024).For the past 40 years, Chevron mandated that, when
a statute does not expressly delegate authority to an
administrative agency on a particular issue or question, courts
defer to a federal agency's interpretation of ambiguous
statutes which the agency is charged with administering, if such
interpretation was "permissible," which has generally
been interpreted to mean reasonable.There has been some subsequent
narrowing of the scope of Chevron deference by the Supreme
Court, for example to agency interpretations reached through formal
proceedings with the force of law (see United States
v. Mead Corp., 533 U. S. 218, 230 (2001)).In a 6-3 ruling
delivered by Chief Justice Roberts, the Supreme Court expressly
overruled Chevron, holding that the Administrative
Procedure Act ("APA") requires courts to exercise
independent judgment in determining whether a federal agency has
acted within its statutory authority, and that courts may not defer
to an agency's interpretation of the law merely because a
statute is ambiguous.Justices Thomas, Alito, Gorsuch, Kavanaugh,
and Barrett joined the Chief Justice's opinion.
The appeal originated from two cases involving family-operated
fishing companies challenging the National Marine Fisheries
Service's ("NMFS") authority to require that
fishermen pay the wages of government-certified at-sea observers
that they must have on-board for certain fishing trips, under the
Magnuson-Stevens Act ("MSA").The United States Court of
Appeals for the D.C. and First Circuits both affirmed summary
judgment decisions in favor of the government—after following
the Chevron steps for analysis—holding, in relevant
part, that the MSA was ambiguous as to whether the NMFS could
require the respective fishing companies to pay the NMFS's
observer's wages, and then deferring to the NMFS's
interpretation of the MSA which the courts found to be
reasonable.The Supreme Court granted certiorari in both cases to
address the question of whether Chevron should be
overruled or clarified.
The majority opinion stated that "the traditional
understanding of the judicial function" requires that
"courts must exercise independent judgment in determining the
meaning of statutory provisions."Slip op. at 16.The Court then
held that "[t]he deference that Chevron requires of
courts reviewing agency action cannot be squared with the"
APA, which prescribes procedures for agency action and sets forth
certain contours of judicial review of such action.Id. at
18.Focusing on Section 706 of the APA (which states that "[t]o
the extent necessary to decision and when presented, the reviewing
court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning
or applicability of the terms of an agency action" and
requires courts to "hold unlawful and set aside agency action,
findings, and conclusions found to be ... not in accordance with
law"), the Court stated that the APA "command[s] ... that
'the reviewing court'—not the agency whose action it
reviews—is to 'decide all relevant questions of
law' and 'interpret ... statutory provisions'" and
that the APA "telling[ly] "prescribes no deferential
standard for courts to employ in answering those legal
questions."Id. at 14, 21.
The Court rejected the argument that overturning Chevron
would diminish the subject matter expertise of federal agencies,
stating that "delegating ultimate interpretive authority to
agencies is simply not necessary to ensure that the resolution of
statutory ambiguities is well informed by subject matter
expertise" and "[t]he better presumption is therefore
that Congress expects courts to do their ordinary job of
interpreting statutes, with due respect for the views of the
Executive Branch."Id. at 25.The Court further noted
that "[c]areful attention to the judgment of the Executive
Branch may help inform" a court's resolution of statutory
ambiguities and that "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 that "courts need not and under the
APA may not defer to an agency interpretation of the law simply
because the statute is ambiguous."Id. at 35.
Justices Thomas and Gorsuch joined the Court's opinion in full
but also filed separate concurring opinions.Justice Thomas filed a
concurring opinion to "underscore" what he viewed as the
"more fundamental problem" that Chevron
deference violates the constitution's separation of powers by,
among other reasons, affording the executive branch "powers
not given to it."Thomas, J., concurring at 2-3.Justice Gorsuch
filed a concurring opinion to explain why, in his view, "the
proper application of the doctrine of stare decisis
supports" overruling Chevron.Gorsuch, J., concurring
at 2.According to Justice Gorsuch, principles of stare
decisis supported departure from Chevron because (i)
it "contravenes the law Congress prescribed in the
[APA]," (ii) it "runs against mainstream currents in our
law regarding the separation of powers, due process, and
centuries-old interpretative rules that fortify those
constitutional commitments," and (iii) "to hold otherwise
would effectively require [the Court] to endow stray statements in
Chevron with the authority of statutory language, all
while ignoring more considered language in that same decision and
the teachings of experience."Id. at 12.
Justice Kagan filed a dissenting opinion, which was joined by
Justices Sotomayor and Jackson (for the latter, as to the
Relentless case; she recused herself from Loper
Bright due to her involvement in the matter as a judge at the
D.C. Circuit).In dissent, Justice Kagan wrote that the majority
decision "gives way to a rule of judicial hubris"; after
noting that, in recent years, the "Court has too often taken
for itself decision-making authority Congress assigned to
agencies," the dissent noted that "[i]f opinions had
titles, a good candidate for today's would be Hubris
Squared."Kagan, J., dissenting at 3.The dissent emphasized the
importance of Chevron deference and Congress's intent
to assign regulatory authority to agencies, reasoning that
"agencies often know things about a statute's subject
matter that courts could not hope to[,]" and "an
agency's construction of a statutory term benefits from its
unique exposure to all the related ways the term comes into
play."Id. at 9-10.The dissent stated the majority was
"making a laughing-stock" of stare
decisis.Id. at 3.After noting that "[i]n fact,
Chevron is entitled to the supercharged version of [the
stare decisis] doctrine because Congress could always
overrule the decision, and because so many governmental and private
actors have relied on it for so long," the dissent stated that
accordingly, "a 'particularly special
justification'" is needed for the majority's decision,
but that the majority "has nothing that would qualify,"
and that its justification for overruling Chevron
"comes down, in the end, to this:Courts must have more say
over regulation—over the provision of health care, the
protection of the environment, the safety of consumer products, the
efficacy of transportation systems, and so on."Id. at
4.According to the dissent, Chevron's
"longstanding precedent at the crux of administrative
governance thus falls victim to a bald assertion of judicial
authority." Id. The dissent concluded that
overturning Chevron "is likely to produce large-scale
disruption."Id. at 32.
Although limitations to Chevron deference had already been
anticipated, the decision will have wide-ranging and significant
implications, and the exact contours of the post-Chevron
analysis will likely be worked out in the courts for years to
come.A few initial points of interest are noted
here.First, the majority harkened back to a precedent, the
Skidmore doctrine (Skidmore v. Swift & Co.,
323 U. S. 134 (1944)), under which "the court will go about
its task [of interpretation] with the agency's 'body of
experience and informed judgment,' among other information, at
its disposal," and "an agency's interpretation of a
statute ... may be especially informative 'to the extent it
rests on factual premises within [the agency's]
expertise'" although it "cannot bind a
court."Slip op. at 25.Whether and how the agency's
judgment and expertise will be taken into account will presumably
vary significantly among different courts.Second, the
majority's overturning of Chevron deference may also
place greater pressure and emphasis on the prior step of
determining whether, under the statute, there is clear
congressional intent to delegate authority to an agency.The
majority abolished what it referred to as
"Chevron's fictional presumption of congressional
intent" of delegation, but noted that, if "the best
reading of a statute is that it delegates discretionary authority
to an agency," then the court must "recogniz[e]"
such delegation and respect the agency's action so long as
"the agency has engaged in "reasoned
decisionmaking.'" Id. at 18.What would qualify as
sufficiently clear congressional intent on that point will also
need to be further developed in case law.Third, although
the majority opinion stated it "do[es] not call into question
prior cases that relied on the Chevron framework" and
"[t]he holdings of those cases that specific agency actions
are lawful" (id. at 34), such prior decisions may be
challenged and the interpretations and rules at issue in those
cases brought into question.
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