Left: FILE – U.S. Supreme Court Chief Justice John Roberts speaks at the University of Nebraska Lincoln, in Lincoln, Neb., Sept. 19, 2014. (AP Photo/Nati Harnik, File); Right: Supreme Court Justice Elena Kagan stands in front of a flag-draped casket of retired Supreme Court Justice Sandra Day O’Connor during a service in the Great Hall at the Supreme Court in Washington, Monday, Dec. 18, 2023. (AP Photo/Jacquelyn Martin, Pool)
The U.S. Supreme Court on Friday announced the end of the “administrative state” as we know it in a ruling with vast implications.
Stylized as Loper Bright Enterprises v. Raimondo, the majority opinion in two consolidated cases explicitly announces the end of so-called “Chevron deference,” a long-standing high court precedent that provided a long-disputed framework for when and how the judiciary should defer to an agency’s interpretation of a federal statute.
Chief Justice John Roberts penned the landmark 6-3 majority opinion. Justices Clarence Thomas and Neil Gorsuch each authored separate concurrences to discuss additional grounds for their anti-Chevron votes. Justice Elena Kagan penned a furious and foreboding dissent joined by the court’s other two Democrat-appointed justices.
“In truth, Chevron’s justifying presumption is, as Members of this Court have often recognized, a fiction,” the majority opinion reads — a harbinger of harsh treatment coming for the famous administrative law case. “So we have spent the better part of four decades imposing one limitation on Chevron after another, pruning its presumption.”
Now, the big shears have come out for one final snip.
The genesis of the analysis once relied on by Chevron jurisprudence is the 1984 environmental law case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which was, factually, a victory for the fossil fuel industry against environmentalists. Legally, the case came down on the side of the Ronald Reagan-era Environmental Protection Agency — which had reconfigured the regulation at issue in the underlying lawsuit to be more friendly to fossil fuel industry interests.
The unanimous majority opinion in Chevron reasoned administrative agencies were better-suited than judges to decide certain controversies because regulators would apply their highly-technical expertise to ambiguities in federal law. A secondary consideration for the court at the time was that executive branch appointees were, in some sense, policymakers executing the political will of the electorate — and in the 1980s, people voted for politicians who promised to re-regulate the state in a way that favored business. The resulting precedent created a multistep process that was serially amended by high court rulings.
The Supreme Court, for its part, largely hewed to the idea that Chevron created a two-step process to analyze disputes.
The first step was to assess “whether Congress has directly spoken to the precise question at issue.” If the answer was yes, no deference to the agency was due; congressional intent must be given primacy.
At Chevron step two, the assessment asks whether Congress had been “silent or ambiguous with respect to the specific issue.” If such an ambiguity or gap was found, the court would not substitute its own judgment but instead would defer to the agency if that agency’s interpretation was “based on a permissible construction of the statute.”
But Chevron was almost instantly controversial and confusing.
Undergirding this approach is the fact that, depending on how any given judge explained the rule, the “two-step process” could be described as having perhaps twice as many steps or even having a “step zero” that was used to suss out whether Chevron applied in the first place.
Gorsuch, in a concurrence just one page shorter than the majority opinion, devotes significant time and criticism to the various permutations of the various steps involved. His concurrence also all but gleefully declares: “Today, the Court places a tombstone on Chevron no one can miss.”
The zero step, itself, grew to contain at least half a dozen potentially pertinent questions as Chevron case law developed over the years. These questions focused on the threshold inquiry of whether formal adjudication or notice-and-comment rule-making under the Administrative Procedure Act (APA) was implicated by the action at the heart of a lawsuit against any given administrative agency.
“The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA,” the court found.
To explain the upshot of the old precedent: agencies would typically only lose Chevron cases at step one of the analysis. An exemplar of the reach and pitfalls contained within the now-dead Chevron doctrine is the attitude of the late justice Antonin Scalia. The famous textualist was highly deferential to agency interpretations of statutes — if and when he allowed his analysis to reach step two of the inquiry. Scalia, however, was one of the least deferential justices at step one.
“Chevron is overruled,” Roberts writes. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
Describing Chevron as a “crumbling precedent,” Roberts notes that the justices have not actually applied the doctrine since 2016.
This casts the Loper Bright regime as an overdue necessity needed to provide clarity to lower courts — while expressly saying prior cases invoking Chevron are not automatically disturbed.
“Chevron’s fictional presumption of congressional intent was always unmoored from the APA’s demand that courts exercise independent judgment in construing statutes administered by agencies,” the majority opinion goes on. “At best, our intricate Chevron doctrine has been nothing more than a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA.”
But what, exactly, is the new Loper Bright regime for statutory interpretation in a dispute between a litigant and an agency?
While the majority has, by binning 40 years of precedent in one opinion, essentially created a new world within administrative law, the nine justices will, over time, fashion new tests and frameworks.
The majority essays its new approach like this:
In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes.
…
When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, “fix[ing] the boundaries of [the] delegated authority, and ensuring the agency has engaged in “‘reasoned decisionmaking”” within those boundaries. By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.
The dissent sees this vision as terrifying — the apex of judicial overreach and a formal coup aimed at reducing regulators’ power.
“Today, the Court flips the script: It is now ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion,” Kagan writes. “A rule of judicial humility gives way to a rule of judicial hubris.”
The dissent, too, paints the Loper Bright ruling as the logical endpoint of recent high court decisions related to agency actions — but views the new administrative law reality as the denouement of a bad trend.
“In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies,” the dissent continues. “The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. But evidently that was, for this Court, all too piecemeal. 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 angrily accuses the Roberts court of transmogrifying itself into “the country’s administrative czar.” In sarcastic tones, the dissent lays into the majority for arguing the “nearly 80-year-old” APA “suddenly” requires the end of Chevron deference. And, Kagan argues, by invoking stare decisis to bin the Chevron precedent, the Roberts court makes “a laughing-stock” of that doctrine as well.
“Its justification comes down, in the end, to this: Courts must have more say over regulation — over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on,” the dissent goes on. “A long-standing precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.”
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