If you use social media to keep up with decisions from the U.S. Supreme Court — or even if you just use it to keep track of politically charged issues in general — you’ve likely seen a few dozen tweets about how SCOTUS “struck down Chevron” today. (Here’s a link to the opinion.) While you can probably guess from context clues that the decision is a big deal, if you were smart enough not to go to law school, you may not be totally clear on why. So, let’s break it down, Q&A-style.
What is “Chevron”?
A multinational oil and gas company, but that’s not what we’re talking about. In the context of “struck down Chevron,” it is a reference to the SCOTUS decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a 1984 case that created what is known as “Chevron deference.”
Ok … what is “Chevron deference”?
Great question! Chevron deference is (or, more accurately, was) a judicial doctrine that said courts would give deference to actions taken by the administrative agencies that interpret and enforce statutes. Under this doctrine, a federal court may not substitute its own interpretation of a statute for a reasonable interpretation of the statute by an administrative agency.
An example might make this easier to understand:
Pretend Congress passed a statute putting limits and restrictions on interstate energy use by cryptomining operations. Traditionally, such a statute would not attempt to list every possible aspect of how it should be enforced, because that would be impossible. Instead, administration and enforcement of the statute would be delegated to, say, the Federal Energy Regulatory Commission (“FERC”). FERC would then go about interpreting the statute, deciding the nuts-and-bolts parts of enforcement to best effectuate the statute’s goals. Any rules they promulgated regarding their interpretation of the statute and its enforcement, as well as any decisions about the statute that came from agency adjudications or other formal proceedings, would be considered part of FERC’s “interpretation” of the statute.
Now, assume the owner of a cryptomining operation violates one of the regulations FERC laid out, and the cryptofarm gets fined by FERC for this violation. Under Chevron (as clarified by subsequent court decisions), if the cryptomining company challenged FERC’s actions in court, the court would apply a three-part test to determine whether it was required to defer to FERC’s interpretation of the statute. Only where the agency’s interpretation failed that three-part test would the court be allowed to substitute its interpretation for FERC’s.
What was the three-part test?
The first part, which is somewhat confusingly known as “Chevron Step Zero” because it was added to the analysis some 17 years after the original Chevron decision, is that the court must determine whether Congress delegated authority to the agency generally to make rules carrying the force of law and whether the agency interpretation was done under that grant of power. (In other words, is the agency one that Congress gave the power to enact binding rules and, if so, is that why the particular agency passed the particular rule being challenged?)
If the court is satisfied that the answer to both parts of Step Zero is yes, then it proceeds to Chevron Step One. At this stage, the court must determine whether Congress expressed intent in the statute and, if so, whether the statute’s intent is ambiguous. If Congress’s intent is unambiguous, that’s the end of the analysis, and the agency has to carry out the clearly expressed intent. If the intent is unclear, however, or if the statute lacks direct language on a specific issue, then the court moves to the final step.
Chevron Step Two, the final piece, requires the court to determine whether Congress left a statute ambiguous or failed to include language on a specific issue explicitly or implicitly. If Congress’s decision was explicit, then the agency’s interpretation and regulations are binding on federal courts unless the interpretation/regulations are arbitrary, capricious or clearly contrary to the statute. If the ambiguity is implicit, on the other hand, a federal court cannot substitute its own interpretation as long as the agency’s construction of the statute is reasonable.
Why was Chevron deference so contentious in the first place?
It wasn’t! That’s what makes this whole thing so crazy, honestly.
When the Chevron decision was handed down in 1984, it was a unanimous 6-0 decision (Justices Rehnquist, Marshall and O’Connor did not participate). Justice John Paul Stevens, writing for the court, explained the rationale for deferring to agency interpretations in specific situations:
Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices – resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.
In short, judges aren’t experts in every specialized field of knowledge that might be relevant to regulations. Agency heads — and agency employees hired by those agency heads — theoretically are experts. And while administrative agency heads don’t answer to voters, the politicians who appoint them do. So deferring to an agency’s reasonable interpretation of a statute reflects the will of the people who voted for the chief executive.
When Chevron was decided, Ronald Reagan was in the final year of his first term. He would win a 49-state landslide a few months later. Perhaps this partly explains why, for years after Chevron was decided, this deference was uncontroversial. Even “uncontroversial” undersells it, really; Chevron deference was outright praised by conservative heroes.
Then-D.C. Circuit Judge Ken Starr said Chevron deference “prevent[ed] the judiciary from … straying into the forbidden ground of overseeing administrative agencies.” Reagan used it as a way around courts, which he and fellow proponents of deregulation considered a roadblock to Reagan’s goals after the courts reversed a number of agency decisions early in Reagan’s tenure. Even as the Supreme Court became more conservative during Reagan’s term, conservative jurists saw Chevron deference as a positive. Justices Clarence Thomas wrote in favor of Chevron deference multiple times, and in 2005 he referred to it as “one of the Court’s most robust articulations of the commandment for judges to defer to administrative agencies.”
Wait, what? Reagan and Thomas?? But wasn’t it the conservatives on the current court who just ended Chevron deference?!
Yep. It was.
Well then, what changed?
Broadly speaking, two events collectively caused conservatives to do a 180 on Chevron: (1) the election of Barack Obama in 2008 and (2) the election of Donald Trump in 2016.
For about two decades after Reagan left office, Chevron deference was rarely a topic of political conversation on either side of the aisle. Presidents and presidential candidates hardly mentioned it. Congress largely ignored it and took no apparent steps in passing laws to expand or curtail deference to agency interpretations. For the entirety of both Bush presidencies and the Clinton presidency, not one senator asked a single question about Chevron deference in judicial confirmation hearings.
In 2008, however, Barack Obama was elected president. Where Clinton had, at least outwardly, espoused a rejection of “big government,” Obama campaigned and won on a platform of the government taking bold, socially popular measures on health care and other real-life issues. Despite opposition, the new president was successful in getting the Affordable Care Act, the American Recovery and Reinvestment Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act passed into law.
The ACA took 482 rules to interpret and implement. The Recovery Act required 212 new rules. Dodd-Frank outpaced the other two combined, resulting in 770 new federal rules.
Republicans adopted a strategy of political gridlock to keep Obama from enacting other laws. Following the 2010 election, when Republicans took both chambers of Congress, they were able to block nearly all of Obama’s legislative agenda in 2011 and 2012.
Because of this do-nothing Congress, the White House had to turn to administrative agencies to get things done. This was especially noticeable when it came to environmental issues. After Congress failed to pass comprehensive climate legislation under Obama, the Environmental Protection Agency interpreted the existing Clean Air Act to authorize regulations to limit greenhouse gasses.
Under Obama, similar agency interpretations of existing statutes were used to get around Congress on issues related to worker safety, consumer protection, nutrition labeling, internet providers and tobacco. When administrative agencies’ actions in these areas were challenged in court, Chevron deference meant most of the agency interpretations were upheld.
In short, where Reagan had used Chevron deference to limit courts’ ability to stop his deregulation goals, Obama used it to expand regulation into areas where Congress failed or refused to act. Conservatives obviously hated this, and soon “Chevron” became a right-wing buzzword alongside “judicial activism.”
One might assume the election of Donald Trump in 2016 would ease conservatives’ concerns about Chevron deference and return America to the halcyon days when regular people didn’t have opinions on judicial doctrines. But that assumption would be very wrong.
Trump won in 2016 in part on a platform of “draining the swamp.” While he never defined who “the swamp” was, most conservatives agreed it included government agencies that passed regulations and rules that impacted Americans and American businesses. Deregulation was a major plank of Trump’s national economic and energy plans, after all.
With control of both chambers of Congress, Trump loyalists quickly introduced a bill that would have explicitly ended Chevron deference as it stood at the time. Only a Senate filibuster prevented that from becoming law.
Ironically, it might have been the death of Justice Antonin Scalia in 2016 that had some Republicans uncomfortable with ending Chevron deference via statute in 2017. Scalia had been a vocal supporter of Chevron, noting the doctrine’s use in deregulation and praising its “predictability” as opposed to “the baneful consequences of the alternative.” Some legal scholars have speculated that Scalia’s support for Chevron was enough to prevent a more forceful attack on the doctrine while he was alive and even after his death. At least until he was replaced by Trump nominee Neil Gorsuch.
As the initial attempt to gut Chevron via congressional action failed, Trump made opposition to Chevron deference a litmus test for judicial appointments. When he nominated Gorsuch — long a vocal opponent to Chevron deference, who once called it a doctrine that “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design” — left-leaning opposition to the nomination made Gorsuch’s position on Chevron an issue in the confirmation hearings. Gorsuch was confirmed nonetheless, and any vestigal memory of Scalia’s support for the doctrine among conservatives vanished.
Along with Gorsuch, Trump replaced retiring Justice Anthony Kennedy with Brett Kavanaugh and used the death of liberal Justice Ruth Bader Ginsburg to install Amy Coney Barrett. By the time Joe Biden took office in 2020, all of the pieces were in place for conservatives to attack the very idea of Chevron deference.
Yikes. Ok. Well then, what did today’s decision actually do?
All that stuff above about Congress deferring to agency interpretations? Today’s decision ended most of that.
Last year, SCOTUS agreed to take up two cases challenging a rule by the National Marine Fisheries Service requiring the herring industry to pay the costs (estimated at $710 per day) of carrying observers on board fishing vessels to collect data and monitor for overfishing. The rule was challenged, and lower federal courts, applying Chevron deference, sided with the agency and against commercial fishing companies. The fishing companies appealed to the Supreme Court.
In today’s opinion, Chief Justice John Roberts, joined by the court’s five conservative justices (including the three appointed by Trump), rejected Chevron deference as “fundamentally misguided.”
According to Roberts, Chevron deference is inconsistent with the Administrative Procedure Act, a federal law that sets out the procedures agencies must follow gives instructions for courts on how to review agency actions. The Administrative Procedure Act directs courts to “decide legal questions by applying their own judgment,” Roberts said, and therefore “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference.”
Roberts also rejected the idea that agencies are better suited to answer questions because they have expertise that judges lack. Even when ambiguities in Congressional actions raise technical or scientific questions that fall within an agency’s area of expertise, Roberts said, “Congress expects courts to handle technical statutory questions.”
Today’s opinion did not outright prohibit courts from taking agency interpretations into account. But courts no longer have to defer to those interpretations in reaching their decisions.
This sounds bad. Is this bad?
As opposed to good? Yeah, pretty much.
The rationale behind Chevron deference in the first place was based on three related ideas: (1) deference allows agencies to operate most efficiently because they don’t have to seek judicial approval on each statutory interpretation and can proceed under the assumption that their interpretations are binding; (2) judges are not experts on things outside the law, and deference ensures that experts in a given subject matter are involved in agency interpretations so that Congress’s purposes are achieved; (3) courts should defer to agency interpretations any time Congress specifically gave an agency the authority to administer a particular statute or subject area (this was Scalia’s basis for supporting deference).
By ending the Chevron doctrine, SCOTUS undermined all three rationales. Moving forward, agencies cannot safely assume their interpretation of a statute is the same as what a federal court full of appointed judges will conclude. They will be unable to efficiently and assuredly move ahead until a court rules on their interpretation. Given the sheer number of agencies and regulations and interpretations involved, this invites gridlock as challenges to new rules pile up.
The decision also puts judges in the position of pretending to know better than subject matter experts. This is terrifying. Judges like U.S. District Court Judge Matthew Kacsmaryck have repeatedly shown a willingness to impose their personal beliefs and ideas about religion and culture into cases. Without Chevron deference, that kind of judicial activism will ramp up. Judges who come upon an agency decision they don’t like can now impose their own interpretation of a law instead.
Today’s decision is a power grab by the courts and away from Congress. Congress explicitly gives an agency the power to administer a statute and subject area. When a court disregards agency interpretations and institutes its own, that court crosses over on the separation of powers.
Likewise, when a president appoints someone to head an agency, he or she does so with the belief that the appointee shares the president’s views and goals and will guide the agency accordingly. Today’s decision means federal courts full of unelected judges who are appointed for life and answer only to themselves can prevent agencies from carrying out the agenda of a president elected by the people.
To make matters worse, today’s decision does not even explain how this post-Chevron system should function. The opinion lacks guideposts for how agencies or lower federal courts should do anything going forward. Courts will muddle through, some correctly and some not. Ticky-tack procedure-based appeals will happen now that would not have needed to happen under Chevron, further gumming up federal dockets.
The federal government is in for more gridlock without Chevron. Senate Republicans’ use of the filibuster has meant that Democrats must secure 60 votes to end debate and force a vote on new regulatory legislation. That number is often not possible. As a work-around, the Biden Administration, much like the Obama Administration, used administrative power. Today’s decision prevents that kind of maneuver.
So, yeah. This is pretty bad, all things considered.
Is there any silver lining?
Maybe. Roberts explicitly wrote that today’s ruling does not mean that earlier cases that relied on Chevron deference have to be overturned.
“Mere reliance on Chevron cannot constitute a special justification for overruling” a prior court decision that upheld an agency’s interpretation, Roberts said.
Then again, between Roe v. Wade and today’s case, along with many others, the current Supreme Court has shown a willingness to find a way to reconsider cases everyone — including the justices during confirmation hearings — said were settled law. So Roberts’ claim that regulations upheld in past cases can’t be challenged again based on today’s rulings should be taken with a grain of salt.
After all, reliance on Chevron alone might not be enough to warrant reconsideration, but the court has left the door open to reconsider regulations where there was previously Chevron deference if a judge can simply find some other reason to overrule it. There are likely already some judges looking for ways to do just that.
Ugh.
Yep. Ugh, indeed.