Chevron Deference & Statutory Stare Decisis – Banishing The Specter Of Chevron

In Loper Bright Enterprises v. Raimondo, the Supreme Court eliminated the Chevron doctrine, which for 40 years directed federal courts to "defer" to Executive Branch agencies in interpreting federal statutes. 144 S.Ct. 2244 (2024). During that 40-year period, federal agencies promulgated countless regulations touching a wide swath of public and private affairs. Indeed, the Code of Federal Regulations ("CFR") currently spans over 200,000 pages. Illustrating Chevron's importance, in a 2015 survey of agency personnel, ninety percent of Executive Branch rule drafters self-reported that Chevron played a role in their drafting decisions. Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan. L. Rev. 999, 1062 (2015).

The takeaway from these data is simple: though Chevron is dead, its ghost haunts the halls of bureaucracy. There are tomes of phantom regulations that rest on now-defunct Chevron deference.

Loper Bright divides existing Chevron-based regulations into two categories. First, regulations that were never litigated in court under Chevron may be challenged on a clean slate; Chevron's ghost does not protect these never-tested regulations. Second, regulations that were litigated and upheld under Chevron, "are still subject to statutory stare decisis[.]" Loper Bright, 144 S.Ct. at 2273. But as we will see, this "statutory stare decisis" is not a particularly strong shield.

Stare decisis is "[t]he doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation." Stare Decisis, Black's Law Dictionary (12th ed. 2024). Statutory stare decisis is sometimes called a "superpowered form of stare decisis," that cautions more strongly against a court's overruling its earlier interpretation of a statute. Kimble v. Marvel Entm't., LLC, 576 U.S. 446, 458 (2015). Statutory stare decisis attaches because, if Congress disagrees with the Court's interpretation of a statute, Congress itself can pass new legislation to correct the Court's error.

Statutory stare decisis, however, is "not an inexorable command." Kimble, 576 U.S. at 447. Statutory stare decisis canonically does not apply when the original decision's "doctrinal underpinnings have eroded over time[,]" or when the original decision has "proved unworkable." Id. at 447.

A Westlaw search for "statutory stare decisis" shows that the Supreme Court has referenced the doctrine in at least 11 decisions. In those decisions, the Justices have identified a healthy variety of practical legal arguments to avoid statutory stare decisis. The following is a summary of such arguments that have persuaded at least one justice and have never been disapproved by a majority:

1. The original decision should be read narrowly. That is, even where statutory stare decisis applies, "it is important to be precise about what [the original decision] held[.]" Kurns v. RR Friction Prods. Corp., 565 U.S. 625, 641 (2012) (Sotomayor, J., concurring in part and dissenting in part); see Groff v. DeJoy, 600 U.S. 447, 474 (2023) (Sotomayor, J., dissenting) ("[the statutory precedent] must be understood in light of its facts and the Court's reasoning."); CXS Transp., Inc. v. McBride, 564 U.S. 685, 711 (2011) (Roberts, J., dissenting) (contending the majority reads a precedential interpretation of the Federal Employees Liability Act too broadly). In other words, if an old decision can be adequately distinguished from a pending case, statutory stare decisis is irrelevant.
2. The original decision did not "actually interpret a statute." Statutory stare decisis does not apply to decisions based on a purely "judge-made rule [that] is not grounded in anything that Congress has enacted." Kimble, 576 U.S. at 471 (Alito, J., dissenting); see Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007) (antitrust case overturning a 96-year old per se ban on vertical price fixing under the Sherman Act).
3. The original decision was not just wrong, but egregiously wrong, leaving "no principled way to apply" its holding. Kimbrough v. U.S., 552 U.S. 85, 116 (2007) (Thomas, J., dissenting). That is, courts will reconsider decisions that lead to unpredictable or inconsistent outcomes in the real world.
4. The parties to the original case failed to assert a material argument. Allen v. Milligan, 599 U.S. 1, 48-49 (2023) (Thomas, J., dissenting) (rejecting statutory stare decisis because "no party in [the precedential case] argued that the plaintiffs' vote-dilution claim was not cognizable."). In other words, the Court can't reject an argument that was never made. This point likely is available frequently.
5. The original decision "was based on a flawed method of statutory construction from its inception." Allen, 599 U.S. at 49 (Thomas, J., dissenting). Decisions based on statutory purpose, policy considerations, or legislative history are vulnerable as the Court retreats from those methods of statutory interpretation.
6. State court decisions counter to federal doctrine may demonstrate that the law is not sufficiently "settled" to warrant stare decisis. CSX, 564 U.S. at 715-16 (Roberts, J., dissenting). State courts apply federal law too, and their decisions are part of the overall body of federal-law precedent. Where decisions of the two systems conflict, "precedent" is not settled.

Furthermore, lower court decisions interpreting statutes may not be subject to statutory stare decisis at all. Now-Justice Amy Coney Barrett has written that statutory stare decisis should not apply to lower-court decisions, because "[e]mpirical research shows fairly conclusively [] that Congress is generally unaware of circuit-level statutory interpretations." Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 331 (2005). Indeed based on Justice Barrett's research and an independent review of circuit-level cases mentioning "statutory stare decisis," six circuits (the 3d, 4th, 5th, 9th, 10th, and 11th) have never applied statutory stare decisis to a circuit-level decision, and even in the seven (the 1st, 2d, 6th, 7th, 8th, D.C., and Fed.) that have, judges have begun to question the practice based on Justice Barrett's reasoning. See Chambers v. District of Columbia, 35 F.4th 870, 896 (D.C. Cir. 2022) (en banc) (Katsas, J., dissenting) ("And one astute commentator has explained that such an inference [that statutory stare decisis applies] is more tenuous where lower-court decisions are at issue.").

Likewise, a review of 31 district court decisions mentioning "statutory stare decisis" shows that district courts virtually never apply statutory stare decisis to their own decisions, and almost every district-court reference to the doctrine is simply a quote noting that the Supreme Court has applied statutory stare decisis in some other case. See, e.g., SmartGene, Inc. v. Advanced Biological Labs., SA, 852 F. Supp. 2d 42 (2012) (observing that the Supreme Court has affirmed the holding in Diamond v. Chakrabarty, 447 U.S. 303 (1980), that laws of nature, physical phenomena, and abstract ideas are non-patentable as a matter of statutory stare decisis).

In sum, regulations that were never tested under Chevron are not protected by statutory stare decisis; they are subject to fresh challenges under Loper Bright. Supreme Court decisions approving regulations under Chevron are subject to statutory stare decisis, but we predict courts will both (1) construe those decisions narrowly and (2) directly reconsider precedents based on arguments identified above. Lower-court decisions under Chevron are vulnerable to the additional argument that statutory stare decisis simply does not apply to lower-court decisions.

The specter of Chevron lingers–dead yet unbanished, awaiting the deft touch of valiant hands finally to exorcise its lingering presence.

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