Scarinci: Chevron Doctrine is Running on Empty – New Jersey Globe

The Supreme Court is poised to dramatically shake up how courts decide legal challenges involving federal regulations. The Court recently heard oral arguments in two cases that ask the justices to abolish (or at least significantly alter) the so-called Chevron doctrine, which has served as a bedrock principle of administrative law for nearly four decades.

Why the Chevron Doctrine Matters

The term “Chevron Doctrine” refers to the U.S. Supreme Court’s decision in Chevron v. Natural Resources Defense Council, which held that courts must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency is charged with administering, even if they are inclined to rule another way.  Chevron analysis typically involves a two-step process.

In step one, courts examine “whether Congress has directly spoken to the precise question at issue.” If so, “that is the end of the matter,” and courts must enforce the “unambiguously expressed intent of Congress.” Where there is statutory silence or ambiguity, however, step two requires courts to defer to a reasonable agency interpretation of the statutory text, even if the court would have otherwise reached a contrary conclusion.

Courts have relied on Chevron in holding up regulations related to the environment, financial markets, healthcare, and countless other issues. The rationale behind the doctrine is that Congress can’t possibly address every possible legal situation when drafting statutes, and federal agencies have the legal and technical expertise required to fill in the details. Proponents of Chevron also maintain that it prevents judges from substituting their personal policy preferences for agency interpretations.

While Chevron is one of the most cited cases by federal courts in administrative law disputes, it has steadily gained critics, including members of Congress, legal scholars, and Supreme Court justices. One of the most frequent criticisms is that the Chevron doctrine allows agencies to formulate policy under the guise of interpreting statutory ambiguities.

What Oral Arguments Revealed About the Fate of Chevron

The two cases before the Supreme Court, Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo, involve a rule issued by the National Marine Fisheries Service requiring fishing vessels to pay for the costs of observers who monitor compliance with fishery management plans. In both cases, the federal appeals court cited Chevron in holding that the rule is a permissible exercise of the agency’s authority.

In appealing to the Supreme Court, the challengers expressly asked the Court to revisit Chevron. The specific question before the justices is “[w]hether the court should overrule Chevron v. Natural Resources Defense Council, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

During oral arguments, several of the Court’s conservative justices appeared skeptical of the Chevron Doctrine, which is not surprising given that Justice Clarence Thomas and Neil Gorsuch had already suggested that it should be overruled in prior decisions. This time around, they raised serious questions about the doctrine’s future, with Justice Gorsuch raising concerns that “Chevron is exploited against the individual and in favor of the government.” They were joined by Justices Samuel Alito and Brett Kavanaugh, who stated: “Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in, whether it’s communications law or securities law or competition law or environmental law. It’s just a massive change that is at war with reliance.”

Not all of the justices appeared ready to completely end Chevron deference, with all members of the Court’s liberal minority expressing support for the doctrine. They specifically raised concerns that ending Chevron deference would require federal judges to make policy determinations on issues that they know little about.

Justice Elena Kagan used AI legislation as a hypothetical. “Congress knows that there are going to be gaps because Congress can hardly see a week in the future with respect to this subject, let alone a year or a decade,” Kagan said. She noted that Congress would arguably want those “who actually know about AI and are accountable to the political process to make decisions.” Meanwhile, courts don’t “even know what the questions are about AI, let alone the answers,” she continued.

Both Chief Justice John Roberts and Justice Amy Coney Barrett were harder to read than their conservative colleagues, with Justice Barrett particularly concerned about the potential upheaval that could result from overruling the long-standing precedent. Justice Kagan raised similar concerns and specifically asked how the Court might “clarify and articulate the limits of Chevron deference without taking the drastic step of upending decades of settled precedent.”

What’s Next?

While oral arguments can reveal a lot about how a justice is inclined to rule, nothing is set in stone until the Court reaches a final decision. If a majority of justices don’t want to abolish Chevron in its entirely, it may survive in a weakened form.

In either event, federal agencies’ more “assertive” interpretations of federal regulations will certainly be more susceptible to legal challenges. Giving courts more leeway when considering regulatory challenges also significantly increases the risk that a rule is deemed valid by lower courts in one part of the country and invalid in another.