Is Chevron Doomed? Two Upcoming Supreme Court Cases May Finally Provide the Answer
By Lizzie Steeves
Every American child is ideally taught the theory of separation of powers, learning that Congress makes the law, the executive branch enforces it, and judges interpret it. But while Alexander Hamilton claimed in the Federalist 70 that “Energy in the Executive is a leading character in the definition of good government,” the modern federal government has two and a quarter million civilian employees, a far cry from the four-department executive branch Hamilton joined in 1789. (1, 2) These government bureaucrats manage everything from approving new medicines to regulating the economy and the environment, and, thanks to Chevron deference, they have an extraordinary amount of leeway in interpreting the congressional statutes that established their departments and granted them this power. Indeed, in our modern world mired in congressional gridlock, it can feel as though the unelected bureaucrats that compose the vast majority of the executive branch make more policy than members of Congress and they, rather than the judiciary, interpret the laws meant to guide their actions. However, this leeway in policy interpretation granted by the judicial branch in the 1984 Supreme Court Case Chevron v. National Resources Defense Council, appears to be under threat. In 2022, the Court introduced the major questions doctrine in West Virginia v EPA. While this case did not overrule Chevron, it provided lower courts with a way to sidestep it, although in these early stages, it has created some confusion about what exactly constitutes a “major question.” In this coming term, however, the Court will hear two cases explicitly challenging Chevron: Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo. (3) While there are compelling arguments in favor of both Chevron deference and West Virginia skepticism, the most important impact of these cases will be the clarification they will hopefully provide about the uncertain future of Chevron and the power of administrative agencies.
The administrative deference provided by the Chevron doctrine has increased the power of executive agencies to set policy, raising concerns about separation of powers and the influence of unelected bureaucrats. The Clean Air Act of 1970 required states that did not achieve national air quality standards to establish a permit program regulating new “stationary sources” of air pollution. Under the Act, the Environmental Protection Agency (EPA) passed a regulation allowing states to treat pollution-emitting devices in the same plant as a single “bubble,” allowing companies to install polluting equipment without a permit provided the alteration did not increase total emissions in the “bubble.” Environmental groups, including the National Resources Defense Council (NRDC) challenged the provision claiming it violated the Act, and the U.S. Court of Appeals for the D.C. Circuit agreed with them. Justice John Paul Stevens, writing for a unanimous 6-0 Court (Justices Marshall and Rehnquist were ill and Justice O’Connor recused herself due to a financial interest in the case) reversed the decision, ruling that the bubble regulation was a reasonable interpretation of the Clean Air Act. (4) The opinion established a two-step test for judicial review of agency construction of statutes now known as the Chevron doctrine. First, a court must consider whether the intent of Congress was clear because both the Court and agency “must give effect to the unambiguously expressed intent of Congress.” If, however, the statute in question is ambiguous and Congress has not “directly addressed the precise question at issue” the Court, rather than imposing its own interpretation, should defer to the experts in the agency and Congress’s right to delegate “a gap for the agency to fill.” In practice, unless the agency’s interpretation is found arbitrary or capricious, their interpretation stands. While this deferential standard does generally increase agency authority at this point, the Chevron doctrine is well-known to the congressional staff who draft legislation. In a survey of such staffers by Abbe Cluck and Lisa Schultz, 90% of respondents expressed a “desire for agency to fill gaps resulting from ambiguities in legislation,” suggesting that lawmakers leave ambiguity deliberately to defer to career bureaucrats who better understand the implications of policies. (5) While many admire Chevron’s deferral to experts in the interpretation of relevant statutes, others criticize it for the “self-regulation” it allows and the limits it places on the power of judicial review. (6)
However, alternatives to Chevron make it more difficult for agencies to adapt to changing circumstances and create confusion for both agencies and lower courts. The more conservative wing of the Roberts Court has been particularly skeptical of agency action in recent years than the Court in Chevron. In King v. Burwell (2015), Chief Justice Roberts rejected the claim that Chevron applied to an Internal Revenue Service rule concerning Affordable Care Act tax credits, because of the “economic and political significance” of the agency rule. (7) The Court formalized this alternative test in West Virginia v Environmental Protection Agency (2022), establishing a test under the major questions doctrine. This test first considers whether a given agency initiative raises a “major question” and then requires the agency to point to “clear congressional authorization” to enforce its regulation. This places a much higher burden of proof on administrative agencies and allows for significantly more judicial review with less deference to agency experts. While some applaud “West Virginia skepticism” for holding agencies accountable, others criticize the test for transferring too much interpretive power to the courts. In an article in the Yale Journal of Regulation, NYU professor Peter M. Shane argued that “West Virginia skepticism encourages the opposite of judicial restraint.” (8) In his view, the judiciary faces fewer congressional checks than the executive because of the leverage of funding, oversight hearings, and the President’s need for congressional cooperation in confirmation battles and law-making. Additionally, because this test is so new, lower courts have had trouble agreeing on what exactly constitutes a “major question.” A survey by Natasha Bruenstein noted that judges have taken “vastly different approaches to defining and applying the doctrine” and indeed that “their applications of the doctrine appear to largely track partisan lines.” (9) Courts seem unsure when to apply the skepticism of the major questions doctrine test in West Virginia and when to apply Chevron deference, which although it has been weakened, has yet to be overruled.
Much of this ambiguity may be resolved in the coming term, however, as the Supreme Court hears new Chevron cases. In May, the Court granted certiorari in Loper Bright Enterprises v. Raimondo. The case is brought by a group of commercial shipping companies challenging a rule by the National Marine Fisheries Service (NMFS) requiring the industry to pay for the cost of compliance monitors. Using Chevron, the D.C. Circuit rejected the challenge, ruling the NMFS’s interpretation of the fishing regulations in the Magnuson-Stevens Act as reasonable. The petitioners argue that the law fails Chevron step one saying, “there is no ambiguity in the statute and therefore no deference is required.” (10) As of July, 45 Amicus Briefs have been filed in this case including by the governor of Georgia, Brian Kemp, and a joint brief filed by Senator Ted Cruz, Speaker Mike Johnson, and 34 other members of Congress. (11) Justice Ketanji Brown Jackson has recused herself from this case because she participated in oral argument while she was a judge on the D.C. Circuit. However, Justice Jackson will be able to hear Relentless v. Department of Commerce, granted this October. (12) This case asks the Court to overrule Chevron or clarify that “expressly but narrowly granted” powers do not constitute ambiguity. (13) These cases are remarkably similar, but the participation of all nine justices will increase the chance of a majority decision. While it is unclear at this point how the justices will rule and oral arguments have yet to be scheduled, Justices Clarence Thomas and Neil Gorsuch in particular have been critical of Chevron. In a concurring opinion in Michigan v. Environmental Protection Agency (2015) Justice Thomas stated that, “Chevron deference raises serious separation-of-powers questions.” (14) The Court may very well side-step the issue of Chevron again, instead ruling more narrowly on the specific statutes at hand, but the legal community looks forward to the increased clarity these cases should provide to lower courts on the future of Chevron and deference for bureaucratic agencies.
Ultimately, the Chevron doctrine and its various criticisms raise important questions about what separation of powers should look like for our modern government. The founders could never have envisioned the vast scope and power of the modern executive branch and its administrative agencies. For better or for worse, the regulations these agencies create and implement have a considerable impact on the lives of every American. Chevron allows the experts within administrative agencies more leeway within the bounds of Congressional statutes but also allows the danger of unelected bureaucrats subverting the will of our elected representatives. On the other hand, eliminating Chevron altogether or applying the major questions doctrine too broadly can give the even less accountable judicial branch the power to create or destroy regulations on a whim, going beyond their power of mere interpretation. As Sir Fransis Bacon noted, “judges ought to remember their task is to interpret law and not to make or give law.” (15) The answer most likely lies somewhere in the middle, but more guidance is needed from the Court to establish the boundaries of administrative agency authority. For nearly a decade, scholars have forecasted the doom of Chevron as rulings tiptoed around the doctrine, finding creative ways to avoid it without actually striking it down. We will watch for oral arguments around January and a ruling by June to see if Chevron can remain in its zombie-like state or will be overturned once and for all.
Endnotes
(1) Hamilton, Alexander. The Federalist Papers: No. 70. Lillian Goldman Law Library, 1788. https://avalon.law.yale.edu/18th_century/fed70.asp.
(2) Congressional Budget Office. “Federal Personnel.” n.d. https://www.cbo.gov/topics/employment-and-labor-markets/federal-personnel.
(3) Howe, Amy. “Justices Grant Four New Cases, Including Chevron Companion Case.” SCOTUSblog, October 13, 2023.
(4) Chevron v. Natural Resources Defense Council, No. 467 U.S. 837 (1984).
(5) Gluck, Abbe R. and Schultz Bressman, Lisa. “Statutory Interpretation From the Inside—An Empirical Study Of Congressional Drafting, Delegation, and the Canons: Part I.” Stanford Law Review 65 (May 2013): 901–1026.
(6) Herz, Michael. “Chevron Is Dead; Long Live Chevron” 115, no. 7 (2015). https://columbialawreview.org/content/chevron-is-dead-long-live-chevron-2/.
(7) King v. Burwell, 576 U.S. ___ (2015)
(8) Shane, Peter M. “Chevron Deference Is Superior to West Virginia Skepticism.” Yale Journal on Regulation, July 12, 2023. https://www.yalejreg.com/nc/chevron-deference-is-superior-to-west-virginia-skepticism-by-peter-m-shane/.
(9) Brustein, Natasha. “Taking Stock of West Virginia on Its One-Year Anniversary.” Yale Journal on Regulation, June 18, 2023. https://www.yalejreg.com/nc/taking-stock-of-west-virginia-on-its-one-year-anniversary-by-natasha-brunstein/.
(10) Howe, Amy. “Supreme Court Will Consider Major Case on Power of Federal Regulatory Agencies” SCOTUSblog (May 1, 2023). https://www.scotusblog.com/2023/05/supreme-court-will-consider-major-case-on-power-of-federal-regulatory-agencies/.
(11) Elwood, John. “Can Fishermen Be Required to Pay for Federal Monitors? And by the Way – Should Chevron Be Overruled?” SCOTUSblog, March 30, 2022. https://www.scotusblog.com/2023/03/supreme-court-fishermen-required-to-pay-federal-monitors-should-chevron-be-overruled/.
(12) Kaplinsky, Alan S. “45 Amicus Briefs Filed with SCOTUS in Support of Petitioners Seeking to Overrule Chevron.” Consumer Finance Monitor, July 26, 2023. https://www.consumerfinancemonitor.com/2023/07/26/45-amicus-briefs-filed-with-scotus-in-support-of-petitioners-seeking-to-overrule-chevron.
(13) Howe, Amy. “Supreme Court Will Consider Major Case on Power of Federal Regulatory Agencies” SCOTUSblog (May 1, 2023). https://www.scotusblog.com/2023/05/supreme-court-will-consider-major-case-on-power-of-federal-regulatory-agencies/.
(14) Michigan v. Environmental Protection Agency, No. 576 U.S. 743 (2015).
(15) Bacon, Sir Francis. “Of Judicature” 9, no. 3 (n.d.): 53–54.
