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‘Chevron deference’ faces existential test

Jody Freeman pinpoints key question in case before SCOTUS: ‘Who decides when laws aren’t clear — courts or agencies?’

7 min read

When federal agencies interpret and enforce the laws passed by Congress, are they fulfilling their statutory duties or emboldening “the administrative state”?

On Wednesday, the Supreme Court will hear oral arguments in two cases challenging a federal rule that requires commercial fishing vessels to pay for the professional observers who monitor their catches to ensure they comply with National Marine Fisheries Service regulations. The plaintiffs in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce are urging the justices to overrule a landmark holding involving the energy giant Chevron. In that decision, from 1984, the court said government agencies are best positioned to interpret federal statutes if a question is not specifically addressed, provided the interpretation is reasonable.

Since then, “Chevron deference” has been a foundational framework in administrative law. But in recent years, critics have argued that the principle violates Article III of the Constitution, which says the federal courts should handle interpretation of law.

The Gazette asked Jody Freeman, a leading administrative law expert and the Archibald Cox Professor at Harvard Law School, to explain why the court is revisiting Chevron deference after 40 years and the potential implications for regulators. Freeman responded to questions by email. Her answers have been edited for clarity and length.

What is Chevron deference and how does it relate to the two cases before the court?

Chevron is, at bottom, about the power of administrative agencies relative to the courts. It stands for the idea that judges should defer to agency interpretations of the gaps and ambiguities in the laws they implement, so long as those interpretations are reasonable. Under this doctrine, agencies get some room to maneuver when Congress does not specifically anticipate or resolve every imaginable legal question (as is often the case), on the theory that Congress entrusted the statutes in the first instance to the agencies, and because they are more expert and experienced in their domains than courts. 

This is not a radical idea. Implementing health, safety, environmental, financial, and consumer-protection laws requires a great deal of day-to-day legal interpretation which depends significantly on subject-matter expertise — questions such as what makes a drug “safe and effective,” what constitutes “critical habitat,” what qualifies as an “unfair or deceptive” trade practice, and countless other questions big and small. Chevron says, if Congress has been clear about the statute’s meaning, that’s the end of the matter. But if Congress has been ambiguous or silent, the expert agency’s reasonable reading should govern.

The two cases being argued raise the same issue: whether a longstanding fisheries conservation law that clearly authorizes the government to require trained, professional observers on regulated fishing vessels can be read to require that their daily rate be paid by the owners of the vessels. In essence, if Congress has not addressed the question of who pays, should the court defer to the agency’s view? 

The court didn’t take these cases because it cares about fisheries conservation, though. They are a vehicle for the larger question: Who decides when laws aren’t clear — courts or agencies? 

“There is a chance the court will jettison Chevron altogether and declare that the courts must decide all questions relating to statutory interpretation. That sounds eminently sensible on its face, but simply cannot work in practice.”

Jody Freeman.
Jody Freeman

Why is a 40-year-old legal framework being questioned now?

With three new conservative justices, petitioners think they have a majority or supermajority of votes to finally overturn or at least limit Chevron. Interestingly, Chevron was a deregulatory decision that allowed the Environmental Protection Agency in the Reagan administration to interpret the Clean Air Act in favor of business. At the time, the decision was embraced by conservatives and considered a stinging loss for environmentalists. But that view has flipped. Now, Chevron is seen as enabling agencies to run amok, a symbol of government excess, overreach, and arbitrariness. I’ve always thought this conservative antipathy to Chevron was curious, since the doctrine is politically neutral: Agencies get deference in both Democratic and Republican administrations. Whoever runs the executive branch gets to interpret the gaps and ambiguities in federal law to align with their policy prerogatives. But the prevailing view among anti-regulatory activists now seems to be that only Democrats use the administrative state to regulate, so Chevron disproportionately helps them. Overturning or cabining Chevron is part of a larger project to restrict the federal administrative state.

If the Supreme Court limits or overturns Chevron, what are the potential ramifications for federal agencies, the lower courts, and lawmakers? 

Chevron does not matter much to the Supreme Court, which largely ignores it. But it does matter to the lower courts, which continue to use its two-step test to manage a flood of litigation challenging agency interpretations of every kind, from the most general to the most intricate. When statutes aren’t clear, courts consider whether the agency interpretation is sensible, well-reasoned, and aligns with the statute’s design. If so, the agency wins. Without Chevron, federal judges may get bogged down in intricate questions of statutory interpretation which require scientific, economic, or technological expertise. Policy choices that are better suited to agencies with research and information-gathering capacity, and obligations to consult stakeholders, will increasingly be made by federal judges, who have none of their expertise and do none of these things. 

Scholars like to point out that it is rare for the Supreme Court to overturn statutory interpretation precedents (as opposed to constitutional ones), but the current court’s willingness to be disruptive, and its self-regard, cannot be underestimated. At a minimum, the court will likely narrow Chevron, perhaps by deciding that deference is due only when Congress has clearly delegated an ambiguity to the agency to resolve, but not where the delegation is unclear or where Congress has been silent. 

That kind of limit would follow the court’s recent pattern. It has chipped away at Chevron for some time now, creating procedural hurdles agencies must clear to deserve Chevron deference, shrinking the scope of agency decisions to which it applies, and declaring that where an agency interpretation involves a “major question” (defined as the Court sees fit), the agency cannot rely on even the broadest grant of congressional authority; instead, Congress must speak more clearly. All these steps have shifted decision-making power to the courts, and away from agencies. The justices may take one more step like this toward cabining Chevron and stop there. 

But there is a chance the court will jettison Chevron altogether and declare that the courts must decide all questions relating to statutory interpretation. That sounds eminently sensible on its face, but simply cannot work in practice. For nearly 100 years, Congress has delegated power to expert agencies to regulate our modern economy, set and enforce public health standards, protect consumers, and much more. Those tasks necessarily and unavoidably require agencies to make legal determinations when Congress has left gaps to fill. If the court overturns Chevron, it will have aggrandized its own power at the expense of Congress, the administrative state, and the president, and thrown critical day-to-day decisions necessary to implement scores of federal statutes to the federal judiciary. It will gum up the works for federal agencies and make it even harder for them to address big problems. Which is precisely what the critics of Chevron want. 

Eventually though, the Court will have to revisit the question of how much deference agencies deserve, for which kinds of legal decisions, under what circumstances. 

When I teach Chevron, I say, “It is a mood piece.” Justice Stevens’ opinion for the court was respectful of the agency and humble about the court’s relative competence to decide complex policy questions embedded in a detailed statute Congress had intentionally designed. That mood is gone. These cases will tell us a lot about how the current court thinks about the federal government. I expect they do not think much of it.