The Supreme Court has agreed to revisit Chevron v. Natural Resources Defense Council (1984), the most notorious decision in administrative law. On May 1, the Court granted certiorari in Loper Bright Enterprises v. Raimondo, with review limited solely to the question whether Chevron should be narrowed or overturned. Some commentators were quick to cram this development into a broader story about how a radical and political Court wants to “dismantle” the administrative state. It is of course possible that Loper Bright will sharply divide the Justices—and even that some Justices will use the case to echo the pundits’ narrative. But this is not a foregone conclusion. On the contrary, there’s a distinct possibility that the Court’s decision in Loper Bright will be unanimous.
Chevron instructs judges frequently—in most instances when statutes are at all “ambiguous”—to defer to how administrative agencies read the law. . . . Or does it? It’s a startling proposition—the notion that government officials, rather than courts, provide the legal analysis that counts. Come to think of it, isn’t Chevron a surprising vehicle for such a constitutional upheaval? It was decided by a quorum of six Justices. It said nothing about disrupting the separation of powers (under which, of course, judges have the final word on what the law is). The decision drew not a whiff of dissent (no Justice wrote separately to say, “Hold on a second . . .”).
Many of Chevron’s critics have long insisted that Chevron is wrong. But is it instead the case that Chevron is badly misunderstood?
The central criticism of Chevron is that it causes judges to abdicate the judicial role. As Justice Thomas has put it, “Chevron deference” improperly “precludes judges” from exercising “independent judgment in interpreting and expounding upon the laws.” Recently, however, Justice Gorsuch proposed that Chevron, properly read, does no such thing. “Tellingly,” Gorsuch wrote last fall, dissenting from denial of certiorari in Buffington v. McDonough, “Chevron did not express disagreement with (let alone purport to overrule) precedents reciting the traditional rule that judges must exercise independent judgment about the law’s meaning.” He noted also that “Chevron’s author, Justice Stevens, later characterized the decision as a ‘simpl[e] . . . restatement of existing law, nothing more or less.” The problem, Gorsuch argued, is not Chevron itself, but an “aggressive reading of Chevron”—what he called “Chevron maximalism.”
Shortly before retiring, Justice Kennedy said much the same thing. He found it “troubling” that “reflexive deference” is being afforded to agencies in Chevron’s name. He worried about how Chevron “has come to be understood and applied” (emphasis added). Gorsuch’s Buffington dissent fleshes out this position.
It is a stance that Chief Justice Roberts seems likely to support. Dissenting in City of Arlington v. FCC (2013), Roberts endorsed Chevron—in principle. “We do not ignore [our judicial duty] when we afford an agency’s statutory interpretation Chevron deference,” he wrote; “we respect it.” Chevron stands, he explained, on the notion that Congress may choose to give agencies the power to fill statutory gaps. But there’s an important caveat. “Before a court may grant such deference” to an agency, Roberts warned, “it must on its own decide whether Congress . . . has in fact” made that choice. Judging from these statements, Roberts does not want Chevron overturned—but neither does he think courts should show “reflexive deference” to agencies.
Justice Kavanaugh, too, seems more inclined to curtail “Chevron maximalism” than to demolish Chevron altogether. On the one hand, Kavanaugh has denounced Chevron deference as a “judicially orchestrated shift of power from Congress to the Executive Branch.” He has said that it’s an “atextual invention,” that it’s “difficult” to “apply,” and that it “invites” agencies to “push the legal envelope.” On the other hand, he has maintained that courts should “still defer to agencies in cases involving statutes using broad and open-ended terms like ‘reasonable,’ ‘appropriate,’ ‘feasible,’ or ‘practicable.’” When Congress uses such words, Kavanaugh believes, a court should not “unduly second-guess the agency’s choice of regulation.” Like Roberts, Kavanaugh is comfortable granting a degree of deference to agencies when Congress makes clear that that’s what it wants him to do.
Is anyone on the Court eager to burn Chevron to the ground? Perhaps not. Justice Alito has endorsed strong disavowals of undue deference, but he has also shown himself willing to apply Chevron so long as it remains good law. According to one observer, Justice Barrett’s “scholarship strongly suggests” that she will construe Chevron carefully, with an eye to “enabl[ing] the judiciary to perform its constitutional function without exceeding the limits of its institutional competence.” And Justice Thomas appears to accept that agencies may “make tradeoffs between competing policy goals set by Congress.” He has even acknowledged the possibility that Chevron has simply been read too broadly—that judges have gone beyond the “boundaries” of the “historical justification for deferring to federal agencies.”
So much for the Court’s six conservatives. What of the three liberals? Justice Jackson has recused herself from participation in Loper Bright. And Justices Kagan and Sotomayor might well agree to narrow Chevron.
Kagan authored, and Sotomayor joined, the majority opinion in Kisor v. Wilkie (2019). Kisor upheld Auer v. Robbins (1997) and so-called “Auer deference,” under which a court sometimes defers to an agency’s reading not of a statute (as in Chevron), but of one of its own regulations. Along the way, though, Kagan emphasized Auer’s limits. She conceded that some of the Court’s precedents “applied Auer deference without significant analysis of the underlying regulation.” She admitted that those rulings “may suggest a caricature of the doctrine, in which deference is ‘reflexive.’” But in reality, she stressed, Auer “obligat[es]” courts to “perform their reviewing and restraining functions.”
Kisor signals that Kagan and Sotomayor are open to reining in Chevron deference. It also models how the Court might go about doing so. One aspect of the decision warrants special attention. “A court should not afford Auer deference,” Kagan wrote, “unless the regulation is genuinely ambiguous.” And “before concluding that a rule is genuinely ambiguous,” she continued, “a court must exhaust all the traditional tools of construction.” For this point she cited—Chevron. “If,” Chevron says, “a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.”
The outcome of Kisor left Gorsuch dissatisfied. “It should have been easy,” he protested in a concurring opinion, “for the Court to say goodbye to Auer v. Robbins.” He complained that the Court had “zombified” Auer instead of killing it off. In his Buffington dissent, however, Gorsuch applauded Chevron’s tools-of-statutory-construction proviso, just as Kagan had done. Indeed, he hailed it as a correct statement of the pre-Chevron rule of administrative law.
What, then, was Kagan’s and Gorsuch’s Auer fight even about? Roberts, for his part, was unsure. “The distance between” their positions, he surmised, “is not as great as it may initially appear.” Kavanaugh thought the same. Although “formally rejecting Auer would have been a more direct approach,” he submitted, “rigorously applying” Chevron’s tools-of-statutory-construction rule “should lead in most cases to the same general destination.” Gorsuch now seems sympathetic to this view, given his comments in Buffington. Or at least he seems willing to take a Kisor-like approach to reforming Chevron.
That approach could easily be applied in Loper Bright. To ensure that they comply with its regulations, the National Marine Fisheries Service can force vessels fishing in federal waters to carry government agents. In a few specific circumstances, federal law requires vessels to pay the agents’ salaries to boot. The question in Loper Bright is whether NMFS can impose a salary requirement in situations beyond those expressly set forth in the statute. Deferring to the agency’s view of the matter, the court of appeals answered yes. Under ordinary principles of statutory interpretation, however, the answer is plainly no. As the petitioners point out, silence is not ambiguity. Further, the salary schemes elsewhere in the statute show that Congress knew how to create this burden when it wanted to do so.
It is fair to say that Chevron deference—as we know it—is doomed. That is not an extreme remark. Nor should it be a controversial one. The “maximalist account of Chevron,” Gorsuch concludes, “reads too much into too little.” And obviously so, since it is emphatically the duty of the judicial department to say what the law is. In Kisor, Kagan declared that “a court must carefully consider the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on.” Substitute “statute” for “regulation” in that statement, and you have the makings of a unanimous opinion in Loper Bright Enterprises v. Raimondo.
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