A Layperson's FAQ on Chevron Deference

Between Supreme Court decisions and the presidential debate, it's been an exciting few days. Predictably, nowhere has the reaction to these events been more unhinged than on Twitter. My own feed is dominated by dog Twitter, the internet hall of fame, and the comic genius behind the Oklahoma Department of Wildlife Conservation account (who just announced she is moving on, breaking the hearts of tens of thousands of her devoted fans). Still, some law content leaks in because I'm a closet SCOTUS (Supreme Court of the United States) junkie, and it's been ... what's the opposite of enlightening? 

So here we go, a layperson's FAQ on Chevron deference. The usual caveat applies: I am not a lawyer, I have never been to law school, and any mistakes or misunderstandings are entirely my own. 

What was the recent SCOTUS decision?

In what was arguably the most consequential decision to date of the current term, the court ruled in Loper Bright v Raimondo to overturn the Chevron doctrine, in a 6-3 vote along ideological lines. This doctrine, also referred to as Chevron deference, was a standard established by SCOTUS forty years ago in their opinion to Chevron v Natural Resources Defense Council (1984).  

Yeah, so far that's not helping

Three branches of government: legislative, executive and judicial. 

The legislative branch (Congress) writes laws and federal statutes. Congress also creates administrative agencies that are granted the authority to implement and enforce these statutes. 

The agencies, whose heads and executives are appointed by the executive branch (White House), interpret the statutes to write rules, regulations, conduct enforcement and impose penalties for violations of the laws and statutes. 

The Administrative Procedures Act (APA), which Congress enacted in 1946, "serves as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation." The APA gives the judicial branch a role in policing the statutory boundaries. Federal courts are directed to "set aside agency action" that is "not in accordance with law" or "in excess of statutory jurisdiction, authority or limitations". 

Ok, School House Rock. What was Chevron deference?

Chevron was a doctrine, created by SCOTUS in their 1984 opinion, that outlined a two-step framework for determining whether or not the court should apply its own interpretation of a statute, or defer to the agencies' interpretation, when the agencies' scope of authority or interpretation is challenged through litigation. 

From Chevron Deference: A Primer (2023) by the fiercely nonpartisan Congressional Research Service (excerpts from page 2 of 35, edited for brevity, emphasis added): 

When Congress delegates regulatory functions to an administrative agency, that agency’s ability to act is governed by the statutes that authorize it to carry out these delegated tasks. In the course of its work, an agency must interpret these statutory authorizations to determine what it must do under the statute and what it may do within the limits that Congress has set. When agencies act pursuant to those interpretations, the scope of their statutory authority is sometimes tested through litigation. Courts that review challenges to agency actions may give special consideration to agencies’ interpretations, particularly of the statutes they administer. This special consideration is known as “deference.” Whether and when courts should defer to an agency’s interpretation of a federal statute, rather than apply the court’s own interpretation, are critical questions in administrative law and judicial review of agency action. 

The Chevron framework of review usually applies if Congress has given an agency the general authority to make rules with the force of law. Within that framework, Chevron often requires courts to accept the statutory interpretations that underlie the agency’s implementation of that general authority. Where a statute is susceptible to multiple reasonable interpretations, the Chevron framework requires courts to defer to an agency’s reasonable interpretation of the statute. The Chevron framework, accordingly, shifts interpretive authority from the federal courts to agencies in certain circumstances. 

 

If Congress has delegated authority to the agency to decide a question—that is, if Chevron applies—a court asks at step one whether Congress directly addressed the precise issue before the court, using traditional tools of statutory construction. If the statute is clear on its face with respect to the issue before the court, the court must implement Congress’s stated intent.

 

If a statute is silent or ambiguous with respect to the specific issue, the court then proceeds to Chevron’s second step. At step two, courts must defer to an agency’s reasonable interpretation of the statute. Courts employ a variety of tools to determine whether an agency’s interpretation is reasonable, including some of the same interpretative tools used in the step one analysis. 

The Primer is outstanding and worth reading in its entirety. 

Seems reasonable. What became problematic? 

Over time using the Chevron framework became messy. From the Primer:

Application of the Chevron doctrine in practice has become increasingly complex. Courts and scholars alike debate which types of agency interpretations are entitled to Chevron deference, what interpretive tools courts should use to determine whether a statute is clear or ambiguous, and how closely courts should scrutinize agency interpretations for reasonableness. A number of judges and legal commentators have even questioned whether Chevron should be overruled entirely. 

In later decisions SCOTUS modified it, blurred it, side-stepped it and created exceptions to it. Still, it was heavily utilized for about 40 years and has been cited in 18,000 opinions across all federal courts (see here and here). However, SCOTUS itself hasn't utilized the Chevron doctrine in a decision since 2016. Legal scholars and court watchers have long referred to Chevron as a zombie precedent, with Justices Alito and Gorsuch stating outright in comments from 2022 that it should be overruled (see the Primer, pages 20-21 of 35). 

Part of the complexity was because government agencies, typically at the direction of the executive branch, also began to write new rules, or (at times wildly) broaden interpretations of their authority in a way that took advantage of a statute being "silent or ambiguous" with respect to an issue. In certain cases an agency's rules and interpretations would change with each turnover in the executive branch. 

I'm shocked! The administrative state = the deep state? 

That's certainly what all the celebrations and hysteria on Twitter would lead one to believe. There's a good article on The Verge here that summarizes some possible areas of impact now that Chevron has been overturned. They mention:

• The FCC's regulations covering broadband and net neutrality; 
• The EPA's rules for carbon emissions and greenhouse gases, and 
• The FTC's regulation of big technology companies. 

It's worth noting that despite the "OMG this is such a power grab by SCOTUS" statements at the beginning, most of the experts that they cite in each case state that Chevron has been dead for some time and the court has migrated to using the Major Questions Doctrine as its standard for adjudicating similar questions of statutory interpretation. 

The what? And this better be short because I'm running on fumes.

As SCOTUS found the Chevron framework problematic, it began to augment or replace it with what is now referred to as the Major Questions Doctrine. From the Congressional Research Service primers for both Chevron and Major Questions:

Under the Major Questions doctrine, the Court has sometimes declined to defer to an agency interpretation under Chevron in “extraordinary cases” that present an interpretive question of great “economic and political significance.”

Applications of the doctrine rest on a determination by the Court that one of the core assumptions underlying Chevron deference—that Congress intended the agency to resolve the statutory ambiguity—is no longer tenable. Where major questions are at stake, the Court has said, “there may be reason to hesitate before concluding that Congress ... intended” to delegate resolution of that question to the agency. The Court’s hesitation is reflected in survey data of congressional staffers. Of the 137 staffers surveyed, 60% responded that drafters intended Congress—not agencies—to resolve major questions.

In several recent decisions, the Court has placed increasing emphasis on the major questions doctrine. First, in Alabama Association of Realtors v. HHS, the Court explained that the CDC’s eviction moratorium was of major national significance and required a clear statutory basis because the agency’s action covered 80% or more of the nation; created an estimated economic impact of tens of billions of dollars; and interfered with the landlord-tenant relationship, which the Court explained is “the particular domain of state law.” Then, in National Federation of Independent Business v. OSHA, the Court considered OSHA’s emergency temporary standard (editor: requiring that workers be vaccinated against Covid-19) to be of major economic and political significance because, in its estimation, it seriously intruded upon the lives of more than 80 million people.

Most recently, the Court’s decision in West Virginia v. EPA marked the first express reference to the major questions doctrine in a majority opinion of the Supreme Court. In West Virginia, the Court rejected EPA’s reliance on a statutory provision that, in the Court’s view, was a “previously little-used backwater.” The Court concluded that it was unlikely Congress would task EPA with “balancing the many vital considerations of national policy implicated in deciding how Americans will get their energy,” such as deciding the optimal mix of energy sources nationwide over time and identifying an acceptable level of energy price increases. For more information on the case, see CRS Legal Sidebar LSB10791, Supreme Court Addresses Major Questions Doctrine and EPA’s Regulation of Greenhouse Gas Emissions, by Kate R. Bowers. 

All of the cases cited above were ones where the government agencies arguably went well beyond their statutory power to undertake actions at the direction of the executive branch. 

What are the takeaways? 

Chevron has been a zombie precedent for close to a decade. Legal scholars, experts and serious court watchers have been expecting this for awhile. Depending on ideology, this can be interpreted as a shift back towards more balanced judiciary oversight of the executive and administrative branch, an exhortation for the legislative branch to start writing less ambiguous and clearly defined statutes, or "a massive power grab" by the Supreme Court. Over time it could have significant ramifications for how these cases are decided, particularly in lower courts, but that's been underway for several years. 

Hysteria aside - and there's been a lot of it - Chevron being overturned will probably stand as the most consequential decision of this term*. 

*The presidential immunity decision is tomorrow. And then come the fireworks! Har har. 

Only Rants

Instead of restarting this blog, which has long focused on finance related topics, I briefly considered starting a new blog and calling it "Only Rants". The title was catchy, though admittedly stolen from my nephew Rand, who at one time considered calling his college football blog "Only Rands". It also implied articles that were grouchy with a twinge of inappropriate, which *points to self* seemed to be on brand. But I finally decided against it for several reasons. Although I will no doubt include occasional spirited content, I want to focus on constructive analysis and ideas more than complaints. I  also worried about the side traffic and judgement that name might attract and I'm not dealing with that. 

However, it's Sunday afternoon and I can't resist a post of random rants. Serious, thoughtful, mind-stretching topics are for weekdays. 

Quick Hint Rants

So boring I'm waiting for your scenes to be over  

Typically this is a combination of the part or scene being badly written, the character under developed, and the actor not finding a way to overcome the deficits with more nuanced acting. 

• Zendaya in Dune Part II - The character isn't interesting, which is entirely the fault of the writers. Zendaya is not particularly convincing that she feels anything other than annoyance, and perhaps jealousy, towards Paul. The pouting and stomping off towards the end comes across as childish, which I hate, because if she's supposed to be strong and powerful, make her exit powerful and principled, not kind of pathetic. 

• Francesca in Bridgerton, Season 3 - I know the point of her love story is that it's not all fireworks and lust (at least not for her husband, haha), but the character and the actor are so flat that it's impossible to care what happens. So far these were the only scenes in three seasons that I fast forwarded through so I wouldn't have to watch her smile wanly. 

Badly miscast and it's still bugging me

• Peeta in Hunger Games and Tom Cruise as Jack Reacher - Just, no. In the books Peeta is big, strong and physically intimidating. Jack Reacher is a former military, Rambo type with the size and build of my ex-husband (6'6", long ape arms, makes anyone think twice about messing with him). As actors both of them are fine, but the characters size and physicality is an integral part of the stories. Josh Hutcherson is 5' 5" and looks like Jennifer Lawrence could beat him in a bar fight. I still enjoy the movies and he does a fine job, but it nags at me that I can't get past his description in the book, which is absolutely a limitation of mine. Tom Cruise casting himself as Jack Reacher was pure hubris and thank god they've redone the series with an actor who is actually believable in the part. 

• Dana Delaney in Tombstone - Tombstone is one of my favorite movies. It has the holy grail of male actors: Val Kilmer (he should have won the Oscar for this performance), Kurt Russell, Sam Elliott and Bill Paxton in the leads. Michael Biehn, who I worship from his turns as Reese in Terminator and Hicks in Aliens, also plays Johnny Ringo. I suspect some of Ringo's scenes ended up on the cutting room floor, because despite a strong performance, the character doesn't feel as fully developed as some of the others. Wyatt's wife, Mattie, has a small, underwritten part (women in a western, duh) but Dana Wheeler still manages a scene stealing performance. I can't put my finger on what bothers me about Dana Delaney's portrayal, but she looks and feels out of sync with the rest of the cast. It's almost as if her performance is modern and everyone else is sticking to old west period acting. It doesn't ruin the movie by a long shot, but it's an out of tune note in an otherwise wonderfully harmonious ensemble. 

No one has a photographic memory

Good Will Hunting was total nonsense. So was Suits. All of the (invariably male) Hollywood written genius characters, astonishing people with near instant recall, reciting limitless passages verbatim because they "have a photographic memory" for ostensibly the library in their heads. It's bunk. 

Scientists have studied and tested this for decades. People who claim to have photographic memories are invariably incorrect or lying. Those closest to having photographic memories tend to recall events or visual information with exceptional detail accurately, not written information. 

Of course there are people with exceptional memories (of whom I am deeply jealous); and many more who build, flex and improve their storage and recall of information with practice. The sheer amount of information that you have to memorize and retain to make it through medical school convinced me I could never be a doctor. Well, that and I can't stand being around sick* people. "Be a pathologist!" *or dead people. 

Jobs I Should Have

 I am currently, as they say, "between jobs", and have been giving some serious and some not at all serious thought to work that I am particularly well suited to do. These are my not at all serious thoughts, in that no one would hire me to do these jobs, and some of these jobs don't technically exist, but I believe they should and that I might be the best person to do them. 

1. Editor for the Harry Potter book series

JK Rowling is an amazing story teller. The language she uses is inventive, the worlds she creates are truly magical and immersive, and she does an exceptional job developing her characters as they mature from middle school through young adulthood. 

JK Rowling is not the best writer. I gave up on reading the books about midway through Goblet of Fire because OMG she just blabbers on and on. She indulges in 50 page tangents and background about characters that go nowhere and don't enhance the story line. Her sentence structures at times are chaotic. Much like Stephen King, she tends to fall back on tropes throughout the series, some of her own creation and some that are exhaustingly stereotypical, particularly in the doofus persona of Ron and the brilliant bookworm Hermione. 

The excessiveness needs editing down, the sentence structures could be tightened up in areas, and some material needs to either be pushed into other standalone books or simply dropped. If you've ever read an interview of Jodie Foster, they can be mind numbing because the woman seems to never shut up. She is wildly successful, her career is productive and challenging, and yet she's so enchanted by her own persona that its off putting. In some limited aspects JK's writing strikes me that way. It's a weird sort of narcissism not to temper your own thoughts, writings or production, as if restraint were only for the less accomplished. 

My most significant gripe with the storytelling itself - not the job of an editor, but I'm going to mention it anyway - is that she repeatedly kills off characters either to seemingly manufacture drama or because she doesn't know what to do with them and wants to focus on new ones. And then she introduces new ones and kills them off too. The stories are fabulous and they follow wonderful arcs. But take a lesson from Tolkien and keep most of the good guys alive. Don't ask your readers to invest deeply in a multitude of characters that you gradually exterminate to presumably reinforce your main characters isolation. That's a bit cheap. 

2. Editor for the Harry Potter movies

Ok now I'm really mad. A badass female author who turned over her incredible stories to all male directors (and screenwriters, I believe), one of whom had never even read the books, and it SHOWED. Mike Newell, Goblet of Fire, by far the worst, most discombobulated movie of the series. He has been eviscerated in other reviews but he deserves it. What kind of arrogant jackalope even wants to direct a movie based on a book that he doesn't find interesting enough to read?  

The movies severely edit down the books, which of course they have to, and most of them do it exceptionally well. I would honestly love to see a Netflix series of the books that can be more expansive and include more storylines, like a Stranger Things style treatment. What bothers me is that Hermione is frequently made a nagging shrew in several of the movies, which to my limited knowledge she very much was not in the books. Include Women Directors, you freaking sexist jerks. 

Best movie of the series and arguably best book of the series: Prisoner of Azkaban. 

Best scene added by writers and director David Yates: where Harry and Hermione dance in the tent to 'O Childern' by Nick Cave, in Deathly Hallows part 1. Everyone seems to love that scene, it captures the deep friendship and intimate connection between Harry and Hermione, and it lifts the story out of the relentlessly, interminably bleak sequence (that I've heard lasts for 300 pages) in the book where nothing much happens. Ok, sorry, moving on. 

3. Dog chiropractor and masseuse 

This is my next career. Not kidding. I love dogs. I'm not a great dog trainer, though I plan on learning how to be a decent one. But helping dogs feel better, move better, relieve stress and pressure on their joints and muscles is definitely something I want to become outstanding at. 

4. Residential architecture and interior design critic

This is one of my favorite hobbies. Just ask my siblings, to whom I email house listings from Zillow, the Wall Street Journal real estate section, or links to various architecture or design sites along with many paragraphs of commentary that bores them silly. 

The reason I could never pursue architecture or design as an occupation is that I have laughably poor depth perception, seek out adult versions of garanimals because I can't match colors, put together complimentary patterns or styles, and although I'm trying, I have near zero ability to pull together a fashionable outfit much less a subtle, balanced, coordinated interior space. 

However, I've learned that TONS of people - including some builders and interior designers - are equally inept at these skills and have jobs doing them anyway, and I enjoy making fun of them. "Well Mary Beth, that's not very nice." Really? You're here so I assume we've met. 

The woman who writes the McMansion Hell blog is one of my personal heroes. She is an architecture expert and in addition to being hilarious, you learn things from her analysis about why some houses look like unbalanced battleships and others have the timeless grace of Biltmore House. 

Hat tip: the most atrocious houses in the Wall Street Journal real estate section are built by small business owners or builders who "have a passion for architecture" and the interiors were designed by (typically) their wives. Invariably it took the couple 7 years to build, they spent $7 to $20 million on the house, its a jumbled mess that often incorporates every overwrought design trend of the past 15 years, and they've lived there for 3 to 5 years and are now selling because "the kids are grown and our business increasingly takes us to Europe for several months of the year, so we're looking for a pied a terre in Paris." I would write the articles but I worry I couldn't sufficiently dampen a slight undertone of sarcasm. 

Those are some of the jobs I should have, while I continue looking for a job that I need, and am actually good at. Was this a TED talk? I honestly have never listened to one.