Supreme Court Overturns Chevron Deference

In one of the year’s most closely watched cases, the Supreme Court on June 28 ruled 6-3 in favor of overturning a 40-year-old interpretive rule created by an earlier Supreme Court decision known as the Chevron deference doctrine. The decision restricts some authority from federal agencies to decide what their regulations mean in cases of ambiguous language, restoring that authority to courts alone.
The Chevron rule—formulated in the 1984 case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.—gave federal agencies increased deference in interpreting their own rules and regulations in cases where the authorizing statutory language was ambiguous. The ruling was supposed to be a gloss on the Administrative Procedures Act of 1946.
As Justice Elena Kagan explained in her dissent, “For 40 years, Chevron …  has served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies. Under Chevron, a court uses all its normal interpretive tools to determine whether Congress has spoken to an issue. If the court finds Congress has done so, that is the end of the matter; the agency’s views make no difference. But if the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap, then a choice must be made. Who should give content to a statute when Congress’s instructions have run out? Should it be a court? Or should it be the agency Congress has charged with administering the statute? The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness.”
The Chevron rule’s critics argued that it turned federal agencies into de facto lawmakers, usurping the lawmaking function of Congress and building the foundations of an overreaching, unaccountable regulatory state. Chief Justice John Roberts agreed, writing for the majority, “The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA. … The APA requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.”

Fisheries Case

The underlying case is Loper Bright Enterprises v. Raimondo, also known as National Fisheries. It was combined with another case that also challenged the Chevron doctrine, Relentless v. Department of Commerce. The court granted certiorari for both cases, with the express purpose of reviewing the Chevron doctrine. The Loper Bright case concerned the Magnuson-Stevens Act (1976), which extended U.S. fishing sovereignty to 200 miles offshore, in order to prevent overfishing. The law allowed the National Marine Fisheries Service, a federal agency, to require fishing vessels to carry federal observers on board to enforce fishing regulations. The law laid out three conditions under which the government can share expenses by requiring the fishing companies to pay the daily salaries of federal monitors. An expanded fishery conservation program, set up in 2020 and continued by President Joe Biden’s administration, extended that mandate. The cost of paying for federal monitors was $710 per day for 19 days a year, a burden that could reduce a fishing vessel’s income by up to 20 percent. (The monitoring program was suspended for the 2023 fishing season because of insufficient funding.)

Lead plaintiff Loper Bright Enterprises, later joined by three other fishing companies, sued the government in 2020, arguing that the payment requirement exceeded the agency’s statutory authority.

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Bill Bright, a Cape May, N.J.-based herring fishermen and one of the plaintiffs in Loper Bright, said in response to the decision: “We are grateful the court has overruled Chevron. Today’s restoration of the separation of powers is a victory for small, family-run businesses like ours, whether they’re involved in fishing, farming or retail. Congress never authorized industry-funded monitoring in the herring fishery, and agency efforts to impose such funding hurt our ability to make an honest living. Nothing is more important than protecting the livelihoods of our families and crews.”

From Ruling To Doctrine

The Chevron deference doctrine is one of the most written-about, talked-about, and fought-over rulings in the Supreme Court’s history, and has been a staple of administrative law courses for 40 years. An entire book, “The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State,” was published in 2022 by Tom Merrill, Charles Evans Hughes professor at Columbia Law School. Law professor Lawrence Tribe tweeted in response to Loper Bright that he was “sorry for my administrative law colleagues who built their courses and careers around the intricacies of Chevron deference.”

More than 171 friends of the court filed 44 briefs in Loper Bright, including 18 U.S. senators, 18 U.S. representatives, 27 state attorneys general and Georgia Gov. Brian Kemp.

At the time of the original ruling, though, its importance was not immediately realized. The Supreme Court didn’t apply the famous two-step rule it invented to judge whether an agency interpretation was “reasonable” for two more years. When it finally did in another case, Justice John Paul Stevens—the Chevron rule’s primary author—dissented.

Lower Court Invention

The lower courts eventually turned the Chevron ruling into a doctrine, citing it more than 18,000 times. Legal scholar Jack Fitzhenry wrote, “Chevron’s evolution into rule-like doctrine was an invention of the lower courts.” Law professor Ronald Cass, reviewing Merrill’s book, wrote, “[T]he Chevron doctrine as we know it is as much a creation of the D.C. Circuit of the U.S. Court of Appeals as of the Supreme Court.” Eventually the Supreme Court itself cited it 100 times.

Interestingly, the Supreme Court had not cited Chevron since 2016—a development that sharp-eyed legal observers noticed. Legal conservatives had always opposed it. Justices Scalia, Alito, Gorsuch and Thomas have all criticized the Chevron doctrine in print. Scalia, commenting on another case, wrote, “Neither Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA. The ‘law of deference’ that this court has built on the foundation laid in Chevron has instead been ‘[h]eedless of the original design’ of the APA.”

In his concurring opinion in Loper Bright, Gorsuch noted, “The hard fact is Chevron ‘did not even bother to cite’ the APA, let alone seek to apply its terms.” Anticipating the end of Chevron, agencies have moved away from citing it in their regulatory guidances.

Related Decisions

Loper Bright is one of a number of recent Supreme Court decisions that have limited the power of the so-called “regulatory state.” In Axon Enterprises v. Federal Trade Commission, in 2023, the court restored constitutional rights of due process to those appealing agency decisions. Before Axon, citizens who wanted to sue federal agencies had to jump through hoops of administrative appeals before they even had the right to sue in federal court. That administrative barrier denied rights to any plaintiff unable to afford a protracted appeals process. The Axon ruling was unanimous.

Another recent case, SEC v. Jarkesy, restored the right of judicial appeal to those accused of fraud by the Securities and Exchange Commission.
Ideological Split

The court’s decision split along ideological lines, with justices Kagan, Sotomayor and Brown in dissent. Reactions to the ruling in the wider media also divided along partisan lines. Small-government conservatives, business interests and farmers cheered closer limitations on the ability of federal agencies to act without challenge, while progressive critics claimed the ruling would gut the ability of federal agencies to regulate practices harmful to the environment.

In her dissent, Kagan accused the court of “judicial hubris.”

“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law,” Kagan said. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”

Sambhav Sankar, a lawyer with the environmental group Earthjustice, said after the ruling, “The conservative justices are aggressively reshaping the foundations of our government so that the president and Congress have less power to protect the public, and corporations have more power to challenge regulations in search of profits. This ruling threatens the legitimacy of hundreds of regulations that keep us safe, protect our homes and environment, and create a level playing field for businesses to compete on.”

On the other hand, Jonathan Berry, who served as a senior Labor Department official under Trump, told the New York Times that overturning the Chevron doctrine itself “doesn’t immediately blow anything up.”