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.