Three Chevron Deference nightmares: What happens when courts defer to federal agencies

September 18, 2023 | By NICOLE W.C. YEATMAN
Arlen and Cindy Foster assisting on their family farm.

If a federal agency does something wrong to you—if bureaucrats penalize you for something you didn’t do, or cheat you out of something that should be yours—the courts should set things right. But sometimes, instead, a court will invoke Chevron Deference and defer to the federal agency. 

Chevron Deference is a doctrine created by the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, in which the Court said the judicial branch should defer to federal agencies’ interpretations of laws, as long as those interpretations are “based on a permissible construction of the statute.” 

As Supreme Court Justice Neil Gorsuch put it, under Chevron,  

Rather than say what the law is, [courts] tell those who come before us to go ask a bureaucrat… We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else. 

This isn’t an abstract legal problem. Chevron has real, harmful effects on individuals’ lives and liberty.  

Here are three examples of courts invoking Chevron to defer to a federal agency, even when the agency was in the wrong. 

1. The Department of Veterans Affairs cheats an Air Force veteran out of his benefits—and courts defer to the government. 

While on active duty in the Air Force, Thomas Buffington suffered back and facial injuries. He also developed tinnitus, a ringing in the ears that’s often diagnosed in veterans who’ve been near explosions or loud machinery. 

When Mr. Buffington was honorably discharged in 2000, the Department of Veterans Affairs (VA) assessed his injuries and awarded him disability benefits, as required by law. 

But Mr. Buffington still wanted to serve his country, so he joined the Air National Guard. In 2003, his unit was called into service. This is where things get tricky: The law says that when a veteran returns to active duty and is receiving active duty pay, his disability benefits should be temporarily suspended. So when Mr. Buffington’s National Guard unit was called up, the VA stopped paying his benefits. 

Mr. Buffington left active duty in 2005 and stopped receiving active duty pay. His disability benefits should have resumed immediately—but the VA never re-started payment.  

In 2009, Mr. Buffington pointed out that the VA now owed him four years of unpaid disability benefits. In response, the VA insisted it would backpay only one year of benefits, citing its own rule that veterans forfeit past-due benefits if they wait more than a year before submitting a claim.  

Mr. Buffington correctly argued that the law says nothing about veterans forfeiting their benefits after a year. That’s just the VA’s interpretation of the law.  

Unfortunately, the Court of Appeals for Veterans Claims and U.S. Court of Appeals for the Federal Circuit cited Chevron and deferred to the VA. Mr. Buffington lost out on three years of disability benefits he was rightfully owed.  

His attorneys tried to bring the case to the Supreme Court, but the case was denied certiorari in 2022. 

2. The Natural Resources Conservation Service refuses to fix its bizarre designation of a puddle as a wetland—and courts defer to the government.  

Arlen and Cindy Foster assisting on their family farm.

The Foster family on the farm.

Arlen Foster is a third-generation farmer in South Dakota. In 1936, Arlen’s father planted trees on the south side of the family farm. Today the trees are quite tall, and most winters, they collect deep snow drifts that slowly melt until a temporary puddle collects in a low spot on the farm field.  

In 2011, incredibly, the Natural Resources Conservation Service (NRCS) designated the puddle as a wetland under the Swampbuster Act.  

The Swampbuster Act says that a wetland designation will “remain valid and in effect… until such time as the person affected by the certification requests review of the certification by the Secretary.”  

But when Arlen requested review, the NRCS repeatedly refused. It interpreted the Swampbuster Act to mean that people could request review only if their land had been altered by a natural event, or if the NRCS itself had changed its mind about the designation. That’s not what the law says—that’s just the NRCS’s interpretation.  

Unfortunately, a district court and the Eighth Circuit Court of Appeals cited Chevron and deferred to the agency.  

Now Pacific Legal Foundation, who represents Arlen Foster, is asking the Supreme Court to hear his case.  

3. The National Marine Fisheries Service forces fishermen to pay the salaries of federal observers—and courts defer to the government.  

Skillful commercial fisherman showcases abundant catch, surrounded by vast ocean, on a boat

Commercial fishing is a tough business with little margin for error. Each day can be a struggle to catch a profitable haul. 

A 2007 law allows the National Marine Fisheries Service to put federal observers, or “monitors,” onboard commercial fishing vessels to watch fishermen and make sure they’re following regulations. For fishermen, that’s a tough-enough pill to swallow: Most commercial fishing boats are small and can fit only a limited number of people. Bringing a federal monitor onboard often means leaving one of your regular crew behind.  

But here’s the kicker: The National Marine Fisheries Service was experiencing budget shortfalls and couldn’t pay for all the monitoring it wanted to do. So it decided to make fishermen pay the $700-per-day salaries of monitors watching them. 

The law doesn’t say fishermen should foot the bill. That’s just the agency’s interpretation of the law. But when fishing company Loper Bright Enterprises sued the government, a district court and the U.S. Court of Appeals for the District of Columbia cited Chevron and deferred to the agency.  

The Supreme Court will hear Loper Bright Enterprises v. Raimondo in its upcoming term, which begins in October. Pacific Legal Foundation is an amicus in the case.