The Death of Chevron Deference

The SCOTUS deals a significant blow to bureaucracy.

United States Environmental Protection Agency building in Washington, D.C.

In a majority opinion penned by Chief Justice John Roberts, the U.S. Supreme Court today issued a decision that overturned the longstanding doctrine of “Chevron deference”, born out of the landmark 1984 Supreme Court decision, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. The ruling - although it did not reach the merits of the case brought by four Atlantic fishing boat companies over the wages it was required to pay fishing “observers” based on the National Marine Fisheries Service’s interpretation of the Magnuson-Stevens Fishery Conservation and Management Act - carries with it tremendous implications for all federal agencies, and for the businesses they regulate. The message from the Court could be summed us simply as, “Bureaucrats Beware.”

For 40 years, Chevron deference has required that courts defer to an agency’s interpretation of a provision in a federal statute if Congressional intent is ambiguous or unclear, and if the agency’s interpretation offered “a permissible construction of the statute.” In theory, the reason for this seems sound. Administrative agencies, not courts, are the bodies charged with administering the particular statutes that relate to their functions, and therefore they alone possess the experience of applying those statutes in everyday, real-world situations. Also, they have been granted authority by Congress to promulgate the regulations that exist to ensure compliance with the requirements set forth by the statutes from which they flow. The Administrative Procedure Act (APA) commands that agencies follow a rulemaking process, which includes notice and an opportunity for public comment, to ensure that the will of the people is considered in formulating these regulations. So on the surface, it seems entirely logical that the agency responsible for regulating and enforcing these statutes on a daily basis should also be the one that is responsible for deciding their interpretation.

Logical, maybe, if not for that pesky thing known as the separation of powers. The federal judiciary, created by Article III of the U.S. Constitution, was designed to be an independent body to serve as a check on the other two branches of government - Congress, which creates the statutes, and the Executive Branch, which administers and enforces them. Since the seminal decision of Marbury v. Madison in 1803, our nation’s courts have been governed by the principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” And Alexander Hamilton, writing in The Federalist Papers, agreed that “[t]he interpretation of the laws is the proper and peculiar province of the courts.” The Federalist No. 78., p. 525. Whether you personally agree that this power should be vested in the courts, one thing is clear: the Framers of our Constitution certainly did not intend to vest the power of statutory interpretation in unelected bureaucrats working at federal agencies. At the very least, there is historical evidence to support the federal judiciary fulfilling this role, even if you don’t consider yourself a Marbury superfan.

Aside from this, the APA itself requires that statutory interpretation be left to the courts: “[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.” 5 U. S. C. §706. So the broadest and most powerful statute enacted by Congress to govern agency action mandates that statutory interpretation be the business of the courts. Reading this, it’s hard to understand how Chevron deference was ever created as a judicial doctrine in the first place, let alone allowed to stand for 40 years as the irrefutable source of administrative agency authority beat into the heads of every first-year law student. To put it more crassly, it flips the bird to the APA, the federal courts, and the Constitution. With Chevron deference, federal agencies usurped the authority of the courts created by Article III, and completely ignored the directive of Congress to let the courts settle the ambiguities left open to interpretation in the statutes it pens. When the body tasked with writing the laws explicitly directs the courts to interpret the laws, there can be little doubt that the courts possess that power.

And what’s more, as Justice Roberts points out, agency interpretation is not always consistent. As someone who worked for various government agencies for 15 years, I can tell you that quite often, it’s not. As old agency heads retire or are replaced, new ones come in with new ideas. If the correct interpretation is any “permissible” one made by whomever happens to be in charge of making the rules at a given point in time, then the meaning of the law becomes more about agency turnover, and less about Congressional intent. In the words of the Chief Justice, “It therefore makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.”

And just to make sure there’s no ambiguity in its ruling, the majority opinion concludes with a statement that is anything but open to interpretation: “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” The implications are substantial, and far-reaching. No longer will agency bureaucrats be judges unto themselves. By returning the authority of statutory interpretation to the courts, much power is returned to the People, who have recourse to them. Before today, challenging an agency’s statutory interpretation was something of a crapshoot. If the court chose to apply Chevron deference, you lost, regardless of how articulate or logical your arguments. No more. As with any other legal dispute, the authority to decide will be placed in the hands of a neutral third party, rather than in the hands of the defendant whose action is being challenged. In many ways, today’s decision restored justice in the world of administrative law. And since virtually all federal law is tied up in administrative agencies, this is a big win for all of us. I’m not saying it will spark the kinds of celebrations we saw with the Dobbs decision two years ago, but maybe it should. So tonight, don’t be afraid to raise a glass to Loper Bright Enterprises v. Raimondo. (Just rolls off the tongue, doesn’t it?)