Discourse Magazine: The End of Chevron

In January, the Supreme Court heard two cases that, according to Vox’s Ian Millhiser, “ask the justices to seize control of much of federal policy-making.” NPR similarly warned that the Supreme Court “could eviscerate the way the federal government regulates, well, everything.” That sounds bad!

But those pieces and a wave of similar commentary rely on caricatures of the judiciary’s current practice and the consequences of a change. The cases before the court are about how judges resolve disputes between Americans and their government, specifically disputes in which a statute at issue may allow for differing interpretations. Deferring to federal agencies empowers political majorities, not experts, to the detriment of more lasting legislative compromise. Requiring judges to interpret laws without favor to the executive branch may or may not prompt Congress to exercise its constitutional role, but it is one needed step toward restoring a more functional separation of powers.

Understanding Chevron Deference

Currently, if judges find themselves incapable of determining the meaning of statutory language after employing all the legal profession’s tools of interpretation, the 1984 opinion in Chevron v. Natural Resources Defense Council instructs courts to defer to a federal agency’s reasonable interpretation of the statute, even if those judges find another interpretation more persuasive. In other words, Chevron puts a thumb on the scale of the government against Americans in cases where Congress has failed to make itself clear.

At first glance, that’s not an unreasonable choice. No statute can be perfectly precise, and those who want to maintain deference to administrative agencies in the absence of congressional clarity point out that agency staff have technical knowledge that merits substantial weight. I worked as a lawyer at an agency administering technically complex regimes and agree that such expertise is valuable and should be carefully considered.

But Chevron tips the scales only after agency experts have already failed to persuade the court that their position is the better interpretation under the law. That should be rare when agency staff are regulating in accordance with the authority and discretion afforded to them by Congress and when judges have a multitude of interpretive tools they can use to resolve even tricky questions about the meaning of statutory texts. If judges are left mystified after employing all those tools, Congress needs to do a better job of writing statutes. But such a failure by one branch of government does not justify judicial favoritism toward another branch of government against the public.

Misunderstanding Questions of Law and Policy

In both cases currently under Supreme Court review, Loper Bright v. Raimondo and Relentless v. Department of Commerce, the lower courts considered whether the National Marine Fisheries Service is allowed to require certain commercial fishermen to pay for federal observers the government requires them to carry on their vessels. “Not exactly the sort of policy question that is covered in law school,” writes Millhiser.

But that quip reflects the fundamental law-versus-policy debate Chevron obscures. Courts can’t make policy decisions, only legal ones, and Millhiser’s comment reflects his belief that the Supreme Court is encroaching on legislative territory in these two cases. Congress makes policy decisions via the laws it passes. Frequently, Congress confers some discretion on agencies to fill in the details when administering those laws, typically providing at least some policy principle to guide those choices. Here, however, Congress was silent as to whether the agency can force fishermen to pay for these federal observers.

The question, then, is whether statutory silence authorizes an agency to impose those costs on fishermen. A court resolving that question is not making a policy call; it’s interpreting the statutory text. And whether a federal agency that derives its authority from a statute is acting permissibly under that statute is exactly the sort of _legal _question that courts are empowered to make. Indeed, in regulatory law classes throughout the country, students grapple with the meaning of statutory silence, sometimes before they’re required to take even fundamental classes such as property or constitutional law.

Millhiser and others warn that undoing Chevron will result in judicial policymaking. But traditional canons of statutory interpretation allow judges to address supposed ambiguity all the time, both under current law and in the event Chevron’s methodology is jettisoned. Even in the cases pending before the court, both the government and the fishermen indicated that they believe they have strong textual arguments that could have resolved this case without resorting to Chevron deference.

Forcing judges to use their interpretive tools to find the best reading of statutory text—when the experts, represented by some of the best lawyers in the country, have failed to persuade those judges of their own reading—is not policymaking any more than forcing a judge to rule on the meaning of a statute in the absence of agency regulation is policymaking.

Moreover, for those who argue that agencies possess the necessary expertise to best apply the law, a ruling for those challenging Chevron deference in these cases would not preclude Congress from relying on that expertise. Take, for example, the meaning of “stationary source” under the Clean Air Act, the question at issue in Chevron itself. Mindful of limits on its ability to delegate its legislative power, Congress could nevertheless confer some definitional authority to the EPA in the text of that statute, and the agency would be back in the ball game in employing its expertise, now with statutory authority and direction rather than ambiguity or silence.

Additionally, Congress can, and does, request input from agency staff on legislation before voting on it. Agency staff identify ambiguities so that Congress can resolve them or clarify that it wants to confer some limited discretion on the agency. And, when litigation arises, the expert agencies may marshal arguments based on their expertise to persuade judges about the proper interpretation.

Does Chevron Really Contribute to Stable Rules?

One of the more compelling arguments put forward by the government is that Chevron deference reflects an intentional choice Congress itself has indeed already made—to confer upon agencies the authority to fill in those gaps that Congress did not foresee. That decision has the benefit of providing national uniformity in how the statute is applied. Without Chevron deference, the argument goes, the benefit of uniformity will be reduced—at least for some period—as judges grapple with statutory text and, no doubt, occasionally come to different conclusions.

The argument has problems—constitutional limits on delegation and Article III’s vesting of interpretative power in the judiciary among them—but it has a pragmatic appeal that Justice Kagan observed at oral argument when she expressed concern that Congress would be unable to pass a law concerning artificial intelligence without giving significant interpretive authority to agencies to address unknown or unforeseeable decisions in any such legislative effort.

Even that apprehension dissipates, however, when you consider the ways in which the Supreme Court’s current precedent permits Congress to explicitly confer authority on agencies to exercise discretion and take evolving factual circumstances into account. For better or worse, only an “intelligible principle” is necessary to delegate vast amounts of policymaking discretion to an agency. That is—perhaps regrettably—a remarkably easy constraint for Congress to overcome. The Supreme Court has, for example, upheld a statute directing the Federal Communications Commission to act in the “public interest, convenience, or necessity” and another directing an agency administrator to issue price-fixing regulations that “in his judgment will be generally fair and equitable and will effectuate the purposes of this Act.”

And the uniformity point is dealt a blow by the fact that courts are not actually giving deference to, as NPR put it, “people inside federal agencies who are experts on things like pollution, banking and food safety.” Rather, Chevron and its progeny require courts to continue deferring when the White House changes hands and the agencies come up with a different—even opposing—interpretation of legislative text.

While a judicial determination of a statute’s requirements remains the law until Congress says otherwise, agency regulations interpreting that statute are susceptible to change with the prevailing political winds. In other words, under Chevron deference, what the law says depends on the views of the president interpreting it, not on the hundreds of members of Congress who considered, compromised and voted on it—and not solely on agency experts. The advertised uniformity is illusory, providing neither predictability nor ease of administration. That is far from a model of good government.

The ‘Democracy’ Red Herring

Chevron proponents argue that when Congress fails to speak clearly or at all on a matter, agency deference permits the executive branch—democratically accountable at least in the president—to make those calls instead of the unelected judiciary.

But our constitutional framework divides power between three branches of government, not two. Deferring to administrative agencies when Congress—the most democratically accountable branch of the federal government—is unclear has the effect of transferring power from the legislature to the far less electorally accountable agencies.

Our constitutional framework relies on an independent judiciary interpreting the law precisely because that branch’s anti-democratic features—such as salary and removal protections—help safeguard minorities against the power of majorities.

In a world where democracies are flirting with authoritarianism, tasking Alexander Hamilton’s “least dangerous branch,” the courts, with the unbiased resolution of disputes between individuals and the government is more prudent than ever—far from the harbinger of institutional demise that some _Chevron _boosters suggest. For example, immigrants fighting a government trying to deport them or veterans seeking benefits to which are entitled would surely want the judge deciding their cases to be neutral rather than putting a thumb on the scale for their adversary, the government.

Justice Gorsuch observed from his time on the Tenth Circuit that it is those individuals, “who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote, generally speaking,” who lose when courts defer to administrative agencies.

Judicial Earthquake or Ripple?

Doing away with Chevron deference is legally correct and would better reflect the constitutional roles of the three branches of government. But the handwringing of Chevron proponents about the potential consequences of such a decision is probably not justified; nor is the optimism of those who hope to see Chevron overturned.

At oral argument in the Relentless case, Justice Kagan acknowledged that “the court is very rarely” in a situation where it has applied all the canons of statutory interpretation, finds the statute to nevertheless be unclear and is forced to defer to the government despite its view that the better reading of a statute is to the contrary. And that is indeed accurate for the Supreme Court, which hasn’t relied on Chevron since 2016.

The lower courts, however, continue to struggle with the effects of Chevron. Even the solicitor general recognized that the Supreme Court could better articulate the limits of Chevron, implicitly acknowledging the concern that lower-court judges may be too quick to rely on Chevron rather than do the hard work of interpreting the law.

Nevertheless, the number of cases in which judges defer to agencies reluctantly is almost certainly smaller than many observers suggest. And they’re not likely to be the big cases. As Justice Scalia wrote on behalf of a nearly unanimous court, “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

And if Congress were, in fact, to leave an ambiguity of critical significance in a major statute, are those really the policy decisions we want agencies making and, more importantly, re-making with each new administration? To that point, Paul Clement, Loper Bright’s attorney, highlighted at oral argument that judicial deference to agency interpretations incentivizes a president and his congressional partisans to prefer that their administrative allies resolve a politically sensitive issue, rather than compromise on a clearer and more lasting answer. After all, that compromise—surely imperfect, from the perspective of a devout partisan—could lead to a primary challenge.

Citing cryptocurrency, which the SEC is struggling to regulate under questionable authority from a 1934 statute, Clement argued that Chevron’s disincentive to compromise is partially responsible for Congress’ perceived inability to address what many believe is a modern problem calling for 21st-century legislation.

Fortifying the Constitutional Structure

There will always be laws significant numbers of Americans disagree with. But while most Americans were once taught Chief Justice John Marshall’s declaration in Marbury v. Madison that it “is emphatically the province and duty of the judicial department to say what the law is,” it is as emphatically Congress’ province and duty to write those laws. And, unlike judges and agency experts, Americans can vote out their congressional representatives every few years.

During oral argument in the two pending cases, several justices mused about Congress’ ineptitude—a valid concern. Congress has been vested with the power to legislate, and it is failing to grapple with difficult and nuanced questions or exercise legislative judgment, even with the help of specialized staff. But it is failing at least in part because of Chevron deference: When Congress does manage to pass legislation, those laws frequently and intentionally confer vast discretion on whoever holds the White House. We can do better.

Overruling Chevron won’t fix what Americans don’t care to correct for themselves: the quality and accountability of our representatives. But it’s a needed step in the right direction for institutional competency and our constitutional system.

This op-ed was originally published in Discourse Magazine on March 25, 2024.