The Future of Chevron Deference at the Supreme Court

Event Video

Listen & Download

The Supreme Court decided multiple administrative law cases this term, but in no majority opinion did the Court cite its landmark 1984 precedent Chevron v. NRDC. The lack of citation to Chevron raises an important question: Is the Court ignoring the Chevron doctrine (which provides for judicial deference to agency interpretations of ambiguous statutes)? Whatever the status of Chevron at the Supreme Court, lower courts continue to apply the doctrine. Scholars have lodged thoughtful critiques of Chevron's rule, but after October Term 2021, its continued vitality is unclear.
 
This panel analyzes what's next for Chevron, with a particular focus on what Chevron's conspicuous absence in the Court's opinions this term might mean for the doctrine's future.
 
Featuring:
  • Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
  • Yaakov M. Roth, Partner, Jones Day
  • Moderator: Eli Nachmany, Editor-in-Chief, Harvard Journal of Law & Public Policy

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Jack Derwin:  Hello and welcome to this Federalist Society's virtual event. My name is Jack Derwin, and I'm Associate Director of Practice Groups at The Federalist Society. Today, we're very excited to host a discussion titled "The Future of Chevron Deference at the Supreme Court," featuring a stellar panel of constitutional law experts.

 

In the interest of time, we'll keep intros brief now. You could view our speakers' full bios at fedsoc.org. In a moment here, I'll turn it over to our Moderator today, Eli Nachmany. Eli is a recent graduate of Harvard Law School where he was Editor-in-Chief of the Harvard Journal of Law & Public Policy. Currently, Eli is a senior research fellow at the C. Boyden Gray Center for the Study of the Administrative State at George Mason University's Antonin Scalia Law School.

 

After discussion between our panelists, we'll go to audience Q&A, so please enter any questions you'd like answered into the Q&A function at the bottom right of your Zoom window. Finally, I'll note that as always, all expressions of opinion on today's program are those of the guest speakers.

 

And with that, Eli, the virtual floor is yours.

 

Eli Nachmany:  Thank you, Jack, for the kind introduction. I am thrilled to moderate this Teleforum about the future of Chevron deference with two brilliant panelists.

 

      The Supreme Court decided multiple administrative law cases this term, but in no majority opinion did the Court cite its landmark 1984 precedent Chevron v. NRDC. The lack of citation to Chevron raises an important question. Is the Court ignoring the Chevron doctrine, which provides for judicial deference to agency interpretations of ambiguous statutes? Whatever the status of Chevron at the Supreme Court, lower courts continue to apply the doctrine. Scholars have lodged thoughtful critiques of Chevron's rule, but after October Term 2021, its continued vitality is unclear.

 

This panel analyzes what's next for Chevron, with a particular focus on what Chevron's conspicuous absence in the Court's opinions this term might mean for the doctrine's future. Today, I am joined by Yaakov Roth and Professor Thomas Merrill.

 

      Yaakov Roth is a Partner at Jones Day in Washington D.C. He recently argued before the Supreme Court in West Virginia v. EPA where he represented the North American Coal Company. Yaakov graduated summa cum laude from Harvard Law School in 2007. He clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit and Justice Antonin Scalia on the Supreme Court of the United States.

 

      Professor Thomas Merrill is the Charles Evans Hughes Professor of Law at Columbia Law School. He recently authored a book about Chevron entitled, "The Chevron Doctrine, Its Rise and Fall, and the Future of the Administrative States." Professor Merrill graduated from the University of Chicago Law School. He clerked for Chief Judge David Bazelon on the U.S. Court of Appeals for the D.C. Circuit and for Justice Harry A. Blackmun on the Supreme Court of the United States.

 

      Well, thank you both for being here and for taking the time. Yaakov, I'm going to start with you. The premise of this Teleforum seems to be that the Court might be ignoring Chevron or that there might be some shift in Chevron's future. Do you have a sense, is the Court actually ignoring Chevron as some commentators have said? If so, when/why did the Court start ignoring Chevron? Is that trend likely to continue? 

 

Yaakov M. Roth:  Thank you so much, Eli. And first of all, thank you for having me today. It's an honor to be invited to participate on a Federalist Society Teleforum and particularly an honor to be invited alongside one of the great scholars in this area, Professor Merrill.

 

      I think you can't really read the decisions over the past few terms and not get the sense that there's some avoidance of the Chevron doctrine on the part of the Supreme Court. And we can talk about some of the reasons of why that might be the case. At the same time, I'm at least not convinced that, you know, you hear some people say oh, Chevron is dead. I mean, the reports of Chevron's death have been exaggerated, both in the Supreme Court and particularly in the lower courts.

 

      So I don't know if you want to get in right away to some of the reasons why we may be seeing less of a focus on Chevron in the Court's decisions, but I don't think it's as -- I don't think we're past the point where deference to agencies makes a difference in the law.

 

Eli Nachmany:  Excellent. And Professor Merrill, I'll pose the same question to you. And please feel free to use this really as a springboard for opening remarks more generally just about the panel, right.

 

Prof. Thomas W. Merrill:  Great.

 

Eli Nachmany:  Is the Court ignoring Chevron? If so, when and why, and is the trend likely to continue?

 

Professor Thomas W. Merrill:  Yeah, great. Thanks again for having me on the panel. I greatly appreciate it.

 

      Yes, the Court is definitely ignoring Chevron. If you push things back a little bit, you'll find that the last time the Court applied the so-called two-step standard of the Chevron doctrine was 2016 in a case called Cuozzo Speed Technologies. Since then, there's been a little bit of reference to Chevron in separate opinions, but the Court has not applied the Chevron doctrine in any case. So we're now going on basically five or six years of the Court's ignoring Chevron as a decisional tool at least.

 

      During the beginning of this period from 2016 over the next couple of years, some justices made remarks about this. My favorite is from Justice Samuel Alito, at one time a staunch supporter of the Chevron doctrine, who remarked in 2018 in a separate opinion, "The Court for whatever reasons is simply ignoring Chevron," which he characterized is an "important, frequently invoked, once celebrated and now increasingly maligned at precedent." So that's an interesting comment from Alito suggesting that there's some kind of internal disagreement about Chevron on the Supreme Court.

 

      How did this come about? It's hard to say. One important piece of data that everyone should be aware of is that—and I take this from a separate Law Review article that was recently published—that the Supreme Court between the time of Chevron becoming understood to be a standard of review roughly 1986, really, but 1992 is when the Court clearly had embraced Chevron as the standard of review. But over the course of the years between then and 2016, the Court relied on Chevron as a standard of review in 107 decided cases. So it's really quite remarkable that all of a sudden, you get this silent treatment about Chevron from the Supreme Court.

 

      How to explain this? No one knows for sure exactly what's going on. My own view is that a couple of factors interacted to create this kind of very strange situation where you have a highly cited venerable precedent used by the Court repeatedly and then all of a sudden, bingo, they turn off the switch and we don't see anything about it at all.

 

      I think the 2013 case of City of Arlington v. FCC was a kind of watershed event. That was the case that presented the question of whether or not agencies get Chevron deference for interpretations of the scope of their own authority. And Justice Scalia, who I will remind people was always very pro-Chevron, wrote the majority opinion for five justices in which he said yes, that you can't distinguish between questions that fall within the agency's authority and questions about the scope of their authority. And therefore, Chevron has to apply to questions about the scope of agency authority.

 

      Chief Justice Roberts wrote a very strong dissent in that case joined by Justices Alito and Kennedy in which he said wait a minute, this really can't be the case. Under separation of powers principles, agencies have no authority to act or to interpret anything unless Congress has delegated authority to them to do so and to say that we're now going to defer to agencies' interpretations of their own authority is basically to undermine a key proposition of separation of powers. So Roberts was quite unhappy with the City of Arlington decision. And I think that decision was also watershed because it reflected a serious split within the group of conservative justices and I suppose also conservative-leading commentators about administrative law or constitutional law more generally.

 

      So I don't think it's an accident that shortly after City of Arlington was decided that Chief Justice in the King v. Burwell case, which involved an issue under the Affordable Care Act, said that well, yes, the statute's ambiguous, but he declined to apply the Chevron doctrine on the grounds that this was a major question of political and economic significance and it was implausible that Congress would've delegated authority to the agency to resolve the question. So he proceeded to resolve it for himself and the majority of the Court. So there was a split in the conservative movement, but within the Court, I think about possible limits on Chevron.

 

I also think that conservative commentators, including my colleague Philip Hamburger at Columbia, began to raise serious questions about the constitutionality of the Chevron doctrine. And it was no accident that during the Trump administration, the House of Representatives, at least during the first two years, the House was controlled by the Republicans, passed bills that would've overruled the Chevron doctrine and that President Trump's first two appointments to the Supreme Court, Justices Gorsuch and Kavanaugh, had a number of remarkable characteristics but among them was that they had both written publicly either in opinions or Law Review articles highly critical of the Chevron doctrine. So I think that the conservatives turned against Chevron shortly after City of Arlington and into the Trump administration.

 

      Another factor was that the justices themselves, I think, became quite wary about Chevron because I think the liberal justices suddenly decided that they liked Chevron. They liked administrative state better than the conservatives do, and Chevron was a pillar of deference to administrative agencies. But they were reluctant to apply Chevron for fear that the conservatives would use it as an occasion to say something negative about Chevron or maybe even overturn or strictly limit the doctrine.

 

      And meanwhile, I think centrist conservative justices like Roberts, maybe others like Alito and so forth, were wary about doing anything too radical to Chevron because the Court had applied it in 107 cases, and it would be a little bit awkward to explain how you were overruling a decision you had applied to 107 times because you'd suddenly discovered that it was fundamentally flawed or legally unsupportable. So I think there was a kind of a -- I think Alito put his finger on it. There was a kind of a shared tacit agreement among the justices that they couldn’t' quite figure out what to do about Chevron, so it was best to do nothing with regard to Chevron.

 

So if you look at the cases from recent years, including this last term, you can find a number of cases. There was one last year called the American Hospital Association case which involved a complicated Medicare reimbursement issue. The statute, to my superficial reading, seems susceptible of at least two different readings. It's the kind of case you have historically expected the court to apply Chevron to decide, but instead, there was no mention of Chevron. And the unanimous opinion, I think, was by Kavanaugh. He simply interpreted the statute de novo without paying any attention whatsoever to the agency's view. But you can find similar opinions from liberal justices as well in the last few years.

 

      Now, when they get opinion writing assignments, they tended to use independent judgment de novo review rather than invoking Chevron. And, again, my suspicion is that this is not because they think deference is such -- should never be -- we shouldn't have no deference doctrine whatsoever, but they just simply can't figure out what to do about Chevron. So we have a very interesting state of affairs here, and it's unpredictable what's going to happen going forward.

 

Eli Nachmany:  Fantastic. Now, Yaakov, Professor Merrill says there are some internal disagreements on the Court about Chevron now and what to do with it. Do you agree with that assessment, and what do you think might be the reason or reasons that's going on?

 

Yaakov M. Roth:  Yeah. Thanks. I do agree. I think that you need to keep in mind that when the Court is deciding a case, the justices are often trying to find the approach to the decision or to the resolution of the case that can generate the broadest consensus or agreement among the group. And my sense, at least, is that if you go back a decade or two, Chevron actually allowed them to do that because you had a potentially wider range of views about statutory interpretation, for example. But you also had justices who were willing to say well, if I were doing this on a blank slate, I probably would read it this way. But I can see the arguments on the other side, so if we're going to rule based on Chevron, that's enough on that deferential standard of review that Professor Merrill mentioned.

 

      And then by the same token, you had justices who would say well, maybe I would read it exactly the other way if I were doing it myself independently, but if I'm going to apply this more deferential approach, I can agree that the agency has this power. And so it was a way to bring justices together and write a decision that more of them could join.

 

      Perhaps one of the things we're seeing now is you have some convergence on questions of how to interpret statutes more than you used to, among particularly the majority of the Court, and you have disagreements about the fundamental foundations of the Chevron doctrine. As the Professor mentioned, Justice Thomas has written about whether Chevron is consistent with separation of powers. Justice Gorsuch has written about that in some of his separate opinions. So you have this more purist approach to separation of powers that leads to doubts about the principle of deference, and so introducing that is not actually helping build a majority anymore the way it used to. It's actually cutting the other way because then you have people splitting off and saying well, I don't agree with that way of approaching it, even though potentially all of them might agree this is the best reading in the statute.

 

      And so I think that may lead to what we call avoidance because at this point, we just have an easier way of deciding these cases based on the accepted view of statutory interpretation, and we conclude the statute's not ambiguous and we never have to get into the issue. So that's one theory or perhaps one factor for why we might be seeing less reliance on Chevron now on the Court.

 

Eli Nachmany:  So, Professor Merrill, let's take these possible disagreements that are going on in the background at the Court and apply it to this most recent term. You mentioned American Hospital Association v. Becerra, and I think some folks were quite surprised. Chevron was a hot topic at oral argument. There was a significant amount of briefing about Chevron. And then, as you mentioned, the case comes out and there's no mention of Chevron deference in the final opinion. What do you think happened?

 

Professor Thomas W. Merrill:  Well, again, I just think it's a product of this shared tacit agreement on the part of the justices not to do anything with Chevron until they can somehow see their way to a secure majority, one way or the other, that decides how to tweak Chevron or what's going to replace Chevron or whatever they decide to do.

 

      I do think that the West Virginia case, which I suspect we're going to discuss in a bit, is a step in that direction. I think that the Court's full-throated endorsement of the major questions doctrine has to be understood to be a carve out from Chevron, and that probably alleviates some of the uncertainty or the pressure, if you will, within the membership of the Court about what to do about the general issue of judicial deference to agency interpretations of law. Whether that's enough of a pressure relief valve or not, I don't know. I think lower courts are going to be totally mystified. There was no mention of Chevron in the West Virginia case, at least in the majority and concurring opinions. But Kagan in her dissent made a very passing reference to it but not to suggest that it should've been applied.

 

      So I think the lower courts -- if I were a lower court judge, I'd scratch my head and say well, major questions are going to be decided by the courts, whatever that means, whatever a major question means. Minor questions are going to be covered by Chevron, so I'll proceed that way until I get some further clarification from the Supreme Court about what to do.

 

      I don't know that Chevron was a way of consensus-building doctrine on the Court. Yes, I think you could find a long string of cases in which the justices applied Chevron to resolve statutory interpretation question. But they've certainly proven that they have other ways of deciding these cases using standard tools of statutory interpretation without making any reference to Chevron.

 

I think another aspect of what's going on here, which is kind of funny, is that the Chevron doctrine, as I explain in my book, really started in the lower courts. It started in the D.C. Circuit. The Supreme Court itself never intended the Chevron decision to be a new standard of review until the lower courts suddenly decided well, it's a standard of review.

 

      But I think the Chevron is very popular among lower court judges because it's easy. It's step one, step two. You don't have to delve into legislative history. You don't have to get involved in other types of complicated ruminations about things. And so for lower court judges which are much busier than Supreme Court justices—lower court judges have these very large caseloads—and particularly if you're on a court like the D.C. Circuit which gets these God-awful complicated administrative law cases, statutes that are hundreds and hundreds of pages long and the issues are very complicated and so forth, Chevron is a blessing because you can just focus in on the point of controversy and then ask whether it's clear or ambiguous. And if it's ambiguous, defer to the agency. If it's clear, you just accept whatever you think the clear meaning is. And that simplifies the decision-making process quite a bit. Agency lawyers also find it helpful for the same reason. 

 

So one of the curious things I think about the current state of affairs is that the Supreme Court seems to have forgotten that one of its functions is to provide guidance to lower courts about how to decide these cases. I think because they have so few cases themselves, they've gotten used to the idea that they can spend infinite amounts of time delving into the nuances of any particular case like in the West Virginia case. It's a very complicated case, but the Supreme Court has the luxury of getting involved in these things at a fairly deep level whereas without the Chevron doctrine, the lower courts are going to be flummoxed as to what they're supposed to be doing. So I think the Court needs to be cognizant of the fact that one of its functions is to provide guidance to the lower court judges, and at this point, they desperately need some clearer guidance.

 

Eli Nachmany:  Professor, I could not be happier that you mentioned West Virginia v. EPA because I can't think of anybody better to talk about it with than Yaakov. Yaakov, having been so involved in that case and seeing, obviously, how it came out, what is your take on how the major questions doctrine as articulated in that opinion in West Virginia v. EPA, how does that now fit in with the Chevron doctrine? Is this question of whether an issue is major or minor now, can we call it a step negative one before steps zero, one, two? Is the major questions doctrine just another traditional tool, maybe not so traditional? Do we apply the step one -- what do you think on that?

 

Yaakov M. Roth:  Yeah. So as I was preparing for the oral argument in the Court, I obviously went back and read all the opinions that have been cited as precursors to the major questions idea, although none of them used that term, and tried to figure out how it fit into the analysis. And at least on my read, I found cases that have used it as a step zero, break off from the whole framework before you even start. There were some cases that I thought used it more as a step one analysis as in we don't think this statute is ambiguous because this principle informs the way we construe the statute. And then there are at least a couple that I think used it as a step two of the Chevron analysis saying well, we don't think this interpretation is a reasonable one because of the vast implications it would have for agency authority.

 

      So I was thinking about well, what if I get asked where does this fit in, what am I going to say? And I thought I would say well, you've done all three so I can't really give you an answer but it's not my fault.

 

      The other thing that -- the conclusion that I drew from it was I wasn't totally clear what difference it made, which step of the analysis that major questions factored in at. Maybe the Professor has an idea on some practical implications, but I couldn't really determine that it actually made much of a difference where in the analysis it was used.

 

      So I think you can think of it as just a separate framework, right? We have Chevron, but Chevron doesn’t apply when the question at issue falls into this category. That's probably the easiest way of thinking about it, but there are other ways and I'm not sure it makes a whole lot of difference ultimately which it is.

 

Eli Nachmany:  So Professor, can you give us a bit of a doctrinal breakdown, maybe more of a practical understanding of in light of West Virginia v. EPA, how do we fit the major questions doctrine into whatever we believe the Chevron inquiry is now? Some people take the position, right, that Chevron only has one step, but we'll call it the formal Chevron inquiry to the extent we're still doing it. What is the major questions doctrine as articulated in West Virginia v. EPA mean for Chevron going forward?

 

Professor Thomas W. Merrill:  Another good question. I do think it matters how one conceptualizes where the major questions doctrine fits in except for King v. Burwell, which I mentioned earlier, the opinion by Chief Justice Roberts involving the Affordable Care Act where he claimed that an exchange established by a state includes an exchange established by the federal government because that statute was ambiguous, he said. Until that case, the precursors of the major questions doctrine seemed to treat this idea as a kind of an afterthought maybe or at least a rhetorical device to cement an analysis either based on the statutory language and structure under step one or in the case of the Utility Air Regulatory Group, an analysis about whether the interpretation was reasonable given the overall structure of the statute, that's step two.

 

      So King v. Burwell was a watershed in the sense that Roberts treated this as a threshold question without regard to having engaged in statutory interpretation before reaching the question whether this was major or one could plausibly say that Congress must've delegated this to an agency or not.

 

      So West Virginia is -- I think the Roberts opinion conceivably could be read in the future as treating major questions as part of the overall statutory construction exercise the courts engage in, step one if you will or step two or something like that. The Gorsuch concurrence to me reads much more like that this is a threshold questions, that courts will answer more or less in the abstract before getting into statutory interpretation.

 

      If that's what it means, I find myself in strong disagreement with it because it's essentially asking courts to make a political science type judgment. Is this controversial? Is this politically divisive? Is this something that Congress has tried to legislate on and failed? How many people are affected? How many dollars are affected and so forth? These are not really statutory interpretation questions. They're questions about politics. And I think it's best courts -- courts would be well-advised to stick to their knitting which is to statutory interpretation, where they have a comparative advantage. And I would rather see the question of the agency's delegated authority decided as a matter of statutory interpretation rather than under some rubric like major questions.

 

      So I think a very simple deference doctrine that might be either a tweak or some kind of evolution of the Chevron doctrine would be that step one did -- we'd ask in step one, did Congress delegate this issue to the agency or not? And then you'd have to decide as a matter of statutory interpretation, yes or no. And if it did delegate to the agency, then you'd ask whether or not the agency's interpretation was reasonable or not. That would be, to me, a very commonsense kind of way to proceed in these cases.

 

      The major questions doctrine, at least in the Gorsuch formulation, seems to be invoking some kind of step negative one or step zero sub-prime or whatever before you get to Chevron. I think lower courts are going to find this very confusing. I think there's going to be a lot of -- if they think that what they have to do is ask the abstract question of this is being major or not, with all these different variables floating around before they get into statutory interpretation, are going to see conflicts all over the place with different judges in the lower courts deciding it's major, it's not major, blah, blah, blah. So I think in an ideal world, the Court should've striven -- strove, whatever the verb is, for more simplicity rather than more complications.

 

The problem I think is that the City of Arlington case again. Justice Roberts does not like to lose, so he was very much anxious to vindicate his positions as a senate in the City of Arlington, but he also doesn’t like overruling Supreme Court cases as we saw on his Dobbs concurrence and so forth. So I think Justice Roberts likes the major questions doctrine as kind of a work around to get back, at least, one-third of the way to what he was arguing for in City of Arlington. But the workaround increases the complexity of the doctrine, at least potentially quite a bit, and therefore, I think it was not a smart -- I think it would've been much better for the Court just to overrule City of Arlington and say look, the question here is whether EPA has authority under Section 111-D under the Clean Air Act dictate to states how to regulate existing sources of pollution, and the answer is no, they don't have that authority. Period, full stop.

 

Eli Nachmany:  So I think we have a good idea now of what is or at least is not going on at the Supreme Court, but as Professor Merrill mentioned, you have, of course, the lower courts are looking at what's going on at the Supreme Court with respect to Chevron. And there may be some questions now as these cases are getting litigated.

 

Yaakov, as somebody who litigates these agency statutory interpretation questions, in light of the Supreme Court's last term and in light of what we saw or maybe more importantly what we didn't see, how do you think this trend is going to affect the lower courts? How is this going to affect how litigants approach agency statutory interpretation cases in the lower courts, notwithstanding whatever the Supreme Court is eventually going to do with respect to Chevron?

 

Yaakov M. Roth:  Yeah. I think at least in the short term, there's probably going to be bifurcation in the way courts handle this as between the courts that are, courts and judges I guess, who are more closely following these trends at the Supreme Court and those who are not. So I think you are still going to have many, perhaps probably most, lower courts stick to the Chevron framework because that's what they know, it's still the law. Put aside these extraordinary high-profile cases, like West Virginia, it's still supposed to be the framework that they follow. And as Professor Merrill pointed out, it does make their job easier which is why, I think, we're never going to really see it go away entirely.

 

      There are a lot of questions that the courts don't really want to have to answer in the first instance and realize they're probably not well-situated to answer in the first instance. So I think we will continue to see lower courts rely on Chevron in those cases.

 

      At the same time, I would not be surprised to see a shift in the D.C. Circuit in the degree to which they rest on Chevron in reaching their decisions. We would need empirical analysis to see whether that happens or not. But I think those judges, because they are doing administrative law so often and because many of them are paying pretty close attention to what the Supreme Court is doing, I think we are likely to see a similar trend, not getting rid of it, they'll still cite it, but I think where there are cases that can be resolved without it, I think we'll probably see more of that in the D.C. Circuit.

 

      One anecdote, I was speaking to a friend the other day who had an argument at the D.C. Circuit and told me the briefs were full of Chevron. The briefs were very, very Chevron heavy, and they had an oral argument and there was not one question asked about Chevron. So I think they get the hint if you're sitting on that court more than most judges in the country will.

 

Eli Nachmany:  Yaakov, if I could just quickly follow up. We talked about what the lower court judges might do, what litigants challenging agency statutory interpretations will do. Do you think we're going to see a shift from the Office of the Solicitor General or at least from the government in the way that brief some of these cases, that it might rely on Chevron less or just not cite it at all and try to defend interpretation?

 

Yaakov M. Roth:  Yeah. The litigants and the judges, we all take our cues from the same place. So you mentioned the American Hospital Association case from the Supreme Court last term. I went back and looked at the briefs, and Chevron was basically the last two pages of both briefs as a tack-on, as I read it, on both sides. So it may be true that it's a case where a decade or more ago, we would've thought this is a really classic case for Chevron, but the briefs didn't treat it that way. The briefs really treated it as secondary afterthought material. And that's, again, that's because they're seeing the way the Court has been handling these cases in recent years, and so it's not going to be your lead point. 

 

Eli Nachmany:  Professor, I'll give you an opportunity as well on the lower courts. Do you foresee any changes going forward or have you seen any changes as yet, given the way that the Supreme Court has approached Chevron with what the lower courts are doing with these agency cases?

 

Professor Thomas W. Merrill:  Right. I can't pretend to have comprehensively surveyed lower courts in the last few years. I do think a number of things are going on here. First of all, sophisticated Supreme Court litigants, the SG's Office for example, are very aware of what goes on in the Supreme Court. They take their cues from the Court's behavior, so they will react to this term by downplaying the use of Chevron even more than they have already.

 

      I did take a little bit of a look at the SG's behavior during the Trump years. The Trump administration, at least general counsel's office of the Trump White House, was obviously against Chevron in some general sense as evidenced by the judicial nominees that they made. But interestingly enough, the Trump SG did not completely stop citing Chevron. It may have just been an accident, which part of the SG's office or the Justice Department the case came out of. But there was clearly a reluctance to heavily rely on Chevron deference overall during the Trump years.

 

      And my guess is that going forward, the SG will also continue to be cautious, maybe even more cautious, about relying on Chevron because they don't think the Supreme Court wants to hear about Chevron.

 

      On the lower courts, I think you have to distinguish between the D.C. Circuit and a lot of other circuits. The D.C. Circuit was packed by the Obama administration with liberal judges so that there's no majority of left-wing judges on the D.C. Circuit like the panel that decided West Virginia before it came up to the Supreme Court.

 

      And I think those, they're very politically astute or at least politically aware, and those judges will probably feather back on Chevron quite a bit because they're not certain what the Supreme Court would do if they relied heavily on the Chevron doctrine in a big case. So you'll probably see a continued turning away from Chevron in a politically sophisticated court like the D.C. Circuit.

 

      Now, what happens in the Sixth Circuit and the Eight Circuit and all that is another question. I think there, the judges are not reading the Washington Post every day, and they probably still think Chevron is the law of the land or at least is good law. And you may get some more Chevron opinions out of those circuits than you would out of the D.C. Circuit.

 

      Again, eventually the Supreme Court's going to have to clear all this mess up, and what vehicle they will choose to do that in, I have no idea or how they will do it, do it in bits and pieces or do it all at once, again, it's very much up for grabs. but I think the picture will be mixed, and I'd be rather surprised if the left-wing -- Obama appointed judges on the D.C. Circuit [plunge ahead 37:44] with Chevron given the signals that the Supreme Court might be looking for a case to shoot it down.

 

Eli Nachmany:  Professor, I'll stick with you, actually, to give you the first crack at this one. So, we've talked about the practical implications, let's zoom out a little bit. Let's think about administrative law in general. What do you think that the recent trend with respect to Chevron, not overturning it but also not really citing it or talking about it, tells us about the path of administrative law in general at the Supreme Court right now as we've undergone personnel changes in recent years?

 

Professor Thomas W. Merrill:  Right. Well, I think the Supreme Court is definitely skeptical about aspects about the administrative state. I think you've seen some tightening of the unitary executive principle in terms of the appointments and removal powers of people that serve on administrative agencies or in sub-agencies and so forth. I think that there's -- the pattern of recent grants suggests that there may be some tightening about the power of agencies like the SEC to assign cases to administrative law judges that work exclusively for the SEC and therefore have a record of always ruling in favor of the SEC.

 

      And I think there's some movement across the board, just sort of tighten up a little bit on the discretion fortitude of administrative agencies to the extent that the Court can easily do so under existing precedent and the APA, Administrative Procedure Act. I don't think the Court is going to rule that the administrative state is unconstitutional and that we should go back to the simple three-part government structure that we had in 1789.

 

      The Court may be willing to take some bold moves on some fronts like the abortion right, but I don't think they're prepared to overturn everything that the federal government does as being beyond the powers of what the Constitution authorizes. So for example, on delegation -- to me, I've written about this so there really are two delegation doctrines. There's the old-fashioned delegation doctrine that says that Congress has to decide all questions of -- has exclusive power to legislate, and that means that Congress can't give too much discretion to agencies. There has to be an intelligible principle or maybe there has to be some -- there has to be [inaudible 40:18] in the details as opposed to making basic policy choices as Gorsuch would have it.

 

      That's the old non-delegation doctrine. The doctrine that comes out of West Virginia is really a different delegation doctrine which says that no agency has inherent authority to act unless they can point to some statute that gives it the power to act. In other words, there has to be a delegation before an agency or for that matter, the President of the United States can start doing something.

 

      I think the Court has prepared the major questions doctrine as a signal of this to enforce that second doctrine pretty strictly. And maybe Gorsuch and the other people who would like to see the first doctrine tightened up will be satisfied with that. I don't think Roberts or the other people in the right center of the Court are in any way prepared to declare a full-scale revival of the nondelegation doctrine as a matter of constitutional law and to start declaring the SEC and the FCC and the Federal Trade Commission and so forth, not to mention the Federal Reserve Board, unconstitutional for having too much discretionary power.

 

Eli Nachmany:  Yaakov, I'll go to you as well. Can you talk a little bit about what trends you see in administrative law generally that might be exemplified or might run counter to, actually, this trend of the Court not really citing Chevron but also not overturning it?

 

Yaakov M. Roth:  Sure. I don't have a lot to add to the Professor's answer on that question, actually. I think he mostly covered it. I do think that the direction that we're seeing on Chevron and a deference to agencies is rooted in the separation of powers ideas that have also been manifesting in other doctrinal developments that affect administrative law like appointments clause, for example. These are the areas where the Court has been active and willing to cutback a bit on the breadth and degree of discretion that agencies have. But I also agree with the Professor that I don't think we have yet a majority on the Court that's willing to go a whole lot more aggressive than that.

 

      Although, they may be forced to confront the issue because there are some fairly forceful lower courts that are willing to take some of these ideas further, and that tees them up or forces the Supreme Court to take a stand on them so we did see -- I think the Professor mentioned the reference to one of the recent Fifth Circuit decision that talked about delegation in the context of the SEC enforcement power. And I know there's some other pending cases that have been being litigated that push on the boundaries of some of these doctrines, building off of some of the concurrences or dissents that some members of the Court have written but that haven't yet found a full majority on the Court.

 

      So I think we're going to have a few more of these interesting cases over the next number of terms.

 

Eli Nachmany:  Perfect. So with that, I'm going to start turning to audience questions. And we really do have some good audience questions. One theme that has been consistently coming up throughout the Q&A, and Professor Merrill, I'll pose this one to you because you brought up delegation. How exactly does Chevron interact with nondelegation? We know that the Court or at least some members of the Court are thinking about reviving nondelegation. You've spoken about it as it is another trend going on right now in administrative law. But could you draw that line for us, to the extent there is one, between Chevron or even the major questions doctrine and delegation as we might see it within the next few years?

 

Professor Thomas W. Merrill:  Well, I'll try. I think the lasting legacy of Chevron, whatever ultimately becomes of it, is that Chevron reoriented the whole question of the standard of review that courts adopt in reviewing agency legal interpretations to the idea of delegation. There's a little bit of this in the pre-Chevron case law but not a lot, but Chevron squarely opposes the issue in terms of delegation. Did Congress expressly or implicitly delegate interpretive authority to the agency? And I don't think that that's going to change. I think that is now a lasting feature of our law, so there's built into the whole Chevron doctrine this idea of delegation and the controversy is really over what we mean by an implicit delegation.

 

Express delegations are rare. That's when Congress says to the agency well, you decide what the word unemployment means or something like that. Implicit delegations are arguably all over the place. There was a time-period when the Supreme Court under the influence of our friend Justice Scalia said that any ambiguity in an agency statute is an implicit delegation. I think the Court is probably very uncomfortable with accepting that at face value, and I hope that that idea changes. But I think that delegation is very much front and center in Chevron.

 

Now, the other nondelegation doctrine about Congress giving away too much power is not so clearly present in the Chevron line of cases. It seems to me to be a little contradictory to say that Congress can't give away too much discretionary power to an agency unless it does so in a clear statement. That seems to be kind of like a contradiction in terms. Only Congress can legislate unless Congress clearly decides to give away the power to legislate.

 

      So I think there's some clear statement rule that comes out of West Virginia and bills in a way on Chevron—it's clearly kind of a carve out from Chevron—also resonates with the Chevron emphasis on delegation. So I think the whole question of did Congress give the agency the power to do this is very much going to be a central aspect of the law going forward.

 

      And my own position is that the courts in every case have to decide independently reading the statute whether Congress in fact did delegate authority to the agency over this particular issue that's before the court. That would be a backtrack from Chevron, but I think it's necessary to preserve the principles of separation of powers, in particular legislative supremacy.

 

      If I could offer another slight editorial, it seems to me that conservatives should support the idea that Congress has exclusive power to tell agencies what they can and can't do and what the limits of their power is because Congress is by far the most represented body of the government that we have. It's sort of reflects the diversity perspectives across the country. There are all sorts of little detail gates or whatever you want to call them that prevent Congress from legislating too much or in too extreme fashion.

 

      The other big idea that conservatives pushed over the years was the unitary executive idea. I think part of the motivation for that was that the agencies were all captured by the left and therefore, we need a strong executive to reign in the agencies. The problem with that theory is that if the democrats win the presidency, the unitary executive theory empowers the White House to enlist the agencies as rubber stamps or whatever the White House wants to do. And we've seen this all over the place, first in the Obama administration but more recently with the Biden administration, that unitary executive is a double-edged sword. If you have a conservative president, okay, fine. That's a way of reigning in the administrative state. But if it's a democratic president, then wham-o, you've got an even more powerful administrative state than you had before.

 

      So I think enforcing the idea that only Congress can delegate power is the right way to try to achieve some kind of constraints on the overgrowth of the administrative state.

 

Eli Nachmany:  Yaakov, another audience question that I'm going to kick to you: there seems to be a rising consensus around textualism as a method of statutory interpretation. I guess the threshold question would be if you agree with that on the Supreme Court, but assuming that it's true, does that suggest less need now for Chevron than there was back when it was decided in the 1980s? Does maybe converging around one theory of statutory interpretation obviate the need for these other deference doctrines that we've built up?

 

Yaakov M. Roth:  So I do agree with the premise generally that there has been some convergence around a textual approach even beyond the conservative majority on the Court. The opinions that Justice Kagan writes don't look like the opinions from the Court in the 1970s or the 1980s. There's much more of a starting focus on the text and what the text means. That doesn't totally avoid the Chevron issue. I think it does allow an offramp in more cases through the traditional tools of statutory construction. We've resolved the ambiguity this other way. That leaves less room for Chevron to operate because there's not as much ambiguity if we take a more rigorous approach to statutory construction.

 

      I don't think it totally avoids it because there are certain terms that are -- they're just capacious and they're not -- the statute isn't going to tell you whether to apply it this way or that way, and that's why we're still going to continue to have Chevron cases that come up. But I do think it's one way the Court can minimize the agency authority, is to make good use of those tools of statutory construction, which is by the way what we saw the Court do with respect to Auer deference, right, is be more aggressive in using that initial toolbox of statutory interpretation so that there's less ambiguity for the agency to construe and then you have some other carve outs that cabin it further. I think what we're seeing with Chevron may parallel with what we saw with Auer deference in the Kisor case a few years ago.

 

Eli Nachmany:  Professor Merrill, this is a question that I think really relates to this last term with the Supreme Court that we had. So two of the cases that I think many folks thought might be Chevron cases were American Hospital Association v. Becerra and then The Empire House Foundation case. Both of which were HHS cases. They concerned HHS interpretations of the Medicare statute. Obviously, neither of those cases ended up being Chevron cases and so wondering if you think that is there a particular agency whose interpretation might lead to case law that's better teed up for the Court to do something about Chevron? NLRB, EPA, whatever. Was a case coming out of an HHS interpretation just not a good vehicle because of the underlying agency that was involved for Chevron?

 

Professor Thomas W. Merrill:  Yeah. It's clearly true that different agencies elicit different reactions from judges. Oddly enough, I think HHS traditionally was an agency where the Court was maximally inclined to invoke Chevron basically because the statutes are very complicated. They affect very large numbers of people. Nobody really -- it doesn't make the front page of the New York Times. It's not that high profile of a case and so forth. And I think the Court had a sense that agencies like HHS were pretty much sticking to their knitting and doing what they were supposed to do in terms of administering the statutes that they had to administer.

 

      So that makes that a rather odd case to make a major statement about Chevron other than maybe to reaffirm Chevron, which the Court is not ready to do for whatever reason, so they didn't say anything about Chevron in those cases. Other agencies are much more controversial. EPA's controversial. NLRB is controversial. The FTC is becoming very controversial, and the SEC and so forth can be controversial. So I would expect that if anything happens, it would be more likely to happen in a case that generates a little bit more heat in addition to light or light and heat. But that's just a very crude thought on my part. Only time will tell what will happen.

 

      If you look back at the history of the Chevron doctrine, the one major qualification of Chevron doctrine was in United States v. Mead Corporation in 2001, which involved whether or not a tariff classification rulings by the customs department were eligible for Chevron deference. That classification in question involved whether or not day planners of the Mead Corporation were diaries or were notebooks or something else like that. Obviously, nobody could care one whit about the substance of that argument, but the Court chose that as the occasion to make major adjustment in the scope of the Chevron doctrine.

 

      So, again, who knows what the future holds?

 

Eli Nachmany:  Yaakov, a question for you. Once we're now within the Chevron dynamic, whatever that means, there's been some discussion of using the traditional tools of statutory interpretation. One audience member asks what are your thoughts about the role of the substantive cannons of construction within the Chevron dynamic such as the pro-veteran cannon or the Indian cannon? And going forward, do we see those as potentially retaining their vitality? And what role do they play when we're doing Chevron?

 

Yaakov M. Roth:  Yeah. There was some really interesting colloquies this past term at the Court between and among some of the justices touching on that issue. Justice Kagan at one of the oral arguments started almost musing aloud about whether we should just get rid of all the substantive cannons because they just distort the way we look at statutes. And then I think somebody wrote a concurrence to address this specifically, although I can't remember right now what case it was or who it was.

 

      So people are thinking about this, and those cannons are part of the toolbox that I referenced earlier, the so-called traditional tools of statutory construction. I don't think that means that all of them are valid. I think you've got to go one by one and figure out where did this come from? Is there some principal basis for it, often as a constitutional basis, right? I mean, I always think of a rule of validity as a due process informed substantive cannon. And then there are others that just sort of seem to appear mysteriously in a case and then cited by everybody as if it's a good rule when it really doesn't have a solid basis, but I think we are going to be hearing more about those cannons because they take on more importance when we're spending more time in step one, which is what we seem to be doing.

 

Eli Nachmany:  Excellent. Well, that about wraps up the questions that we got from the audience, some fantastic questions I thought. And I want to thank our panelists, Yaakov Roth, Professor Thomas Merrill. This was really a fascinating discussion about Chevron, the future of deference at agencies and at the Supreme Court. So for the panelists, my name is Eli Nachmany and I was really honored to moderate this discussion. I'm now going to turn it over to Jack Derwin with The Federalist Society to close us out.

 

Jack Derwin:  Thanks so much, Eli, and to you Yaakov and Professor Merrill as well. And thank you to our audience for tuning in to today's event. You can check out our website, fedsoc.org, or follow us on all the major social media platforms @fedsoc to stay up to date. Thanks so much.

 

[Music]

 

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.