Deference and its Discontents: Will the Supreme Court Overrule Chevron?

Deference and its Discontents: Will the Supreme Court Overrule Chevron?

Legal Sidebari

Deference and its Discontents: Will the
Supreme Court Overrule Chevron?
October 11, 2018
Less than a week before announcing his retirement, Justice Anthony Kennedy called for the Supreme
Court to “reconsider” the seminal administrative law doctrine known as Chevron deference in a
concurring opinion in Pereira v. Sessions. The doctrine, established by the Court’s opinion in Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., instructs that when reviewing certain agency
interpretations of statutes, courts should defer to the agency’s construction if the statute is ambiguous and
the agency’s construction is reasonable. Some members of the Court—namely, Justices Clarence Thomas
and Neil Gorsuch—have called for reconsideration of Chevron. In addition, the newest Justice, Brett
Kavanaugh, was a leading critic of the doctrine during his tenure on the U.S. Court of Appeals for the
D.C. Circuit. The selection of Justice Kavanaugh has led commentators to question whether the Court
might reconsider Chevron in the near future. As the Supreme Court’s new term began this month, the
Court confronted the issue of agency deference in Nielsen v. Preap, although Chevron itself did not come
up during oral argument. Recent cases suggest, however, that the Court might continue to reaffirm the
case’s vitality, and if the Court were to reassess Chevron, it might be to narrow the circumstances under
which the doctrine applies in lieu of jettisoning it.
Chevron Deference
The Chevron framework generally applies when a court reviews an agency’s interpretation of a statute if,
as the Supreme Court has said, “it appears that Congress delegated authority to the agency generally to
make rules carrying the force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority.” If Chevron applies, courts use the doctrine’s two-step
framework to review the agency interpretation. In Step One, Chevron instructs courts to ask whether the
relevant statute is clear, using the “traditional tools of statutory construction” to determine whether
Congress unambiguously resolved “the precise question at issue.” If instead the statute is silent or
ambiguous, courts proceed to Step Two and ask whether the agency’s interpretation of the statute is
reasonable.
It is this second step, in which courts uphold “reasonable” agency constructions, that embodies Chevron
deference. In a normal statutory interpretation analysis, a court would seek to determine the best reading
of the statute, as determined by the court itself. But under Chevron Step Two, a court may defer to an
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agency’s interpretation even if it is not “the reading the court would have reached,” as long as the
agency’s construction is reasonable. The Supreme Court explained this deference in its Chevron opinion
by stating that where a statute is silent or ambiguous, the Court assumed that Congress had implicitly
delegated interpretive authority to the agency tasked with administering that statute.
Judicial Criticism of Chevron
As many scholars have noted, the Chevron framework has long been subject to criticism (although, as
others have observed, the general principle that courts will afford some deference to some agency
interpretations predates the Chevron decision). This Chevron skepticism has surfaced in academia and,
perhaps more importantly, in the courts. In one recent study, a majority of federal appellate judges
surveyed by the authors “were decidedly anti-Chevron.”
Supreme Court Justices Thomas and Gorsuch have voiced their own reservations about the doctrine.
Justice Thomas may be the most vocal critic, arguing in one concurring opinion that Chevron raises
constitutional separation-of-powers concerns by “preclud[ing] judges from exercising” constitutionally
mandated “independent judgment” in interpreting statutes, and instead handing that interpretive power
“over to the Executive.” He later called for the Supreme Court to “reconsider” “Chevron’s fiction that
ambiguity in a statutory term is best construed as an implicit delegation of power to an administrative
agency to determine the bounds of the law.” Justice Gorsuch is also skeptical of the doctrine. As a judge
on the Tenth Circuit prior to his elevation to the Court, he echoed Justice Thomas’s separation-of-powers
concerns. More pointedly, he argued that Chevron, in conjunction with subsequent cases applying that
doctrine, “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative
power and concentrate federal power in a way that seems more than a little difficult to square with the
Constitution of the framers’ design.”
Narrowing Chevron’s Scope
Despite this criticism, the Chevron framework of review remains good law, and one recent study shows
that the federal circuit courts of appeals have consistently applied Chevron to defer to agency
interpretations. However, two trends in the Supreme Court’s application of Chevron have resulted in the
Court less frequently deferring to agencies under Chevron’s Step Two: first, a more rigorous Step One
analysis; and second, the major questions doctrine.
First, as commentators have noted, a more robust inquiry into statutory meaning at Chevron’s Step One
means that courts might be less likely to proceed to Step Two. Step One requires courts to engage in
interpretation of the underlying statute, and whether a reviewing judge determines that a statute is
ambiguous may turn on the judge’s approach to statutory construction. If a judge is reticent to find
statutory ambiguity, as Justice Kavanaugh and others have stated they are, then under the rubric of
Chevron itself, that judge will be more likely to conclude that the statute is clear, and the deferential
review involved in Step Two will never come into play. For example, in the Supreme Court’s last term,
the Court considered whether to defer to an agency’s interpretation of a statute under Chevron in five
opinions. In each instance, the Court’s opinion concluded that Chevron deference did not apply because
the statutory language at issue was clear. The authors of these opinions spanned judicial philosophies:
three were written by Justice Gorsuch, one was authored by Justice Ginsburg, and the last was prepared
by Justice Sotomayor. Thus, this past term, the Court never deferred to an agency under Chevron’s Step
Two, but neither did it question Chevron itself—although in two of Justice Gorsuch’s opinions (SAS
Institute v. Iancu and Epic Systems Corp. v. Lewis), he emphasized that none of the parties asked the
Court to reconsider Chevron.
Second, some scholars have stated that Chevron’s scope has been narrowed through application of the
major questions doctrine (sometimes known as the major rules doctrine). The major questions doctrine,

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while never endorsed by name by the Supreme Court, has been distilled from a number of cases in which
the Supreme Court suggested that it would not defer to an agency’s interpretation under Chevron because
the disputed interpretation involved a question of “such economic and political magnitude” that it is
unlikely that Congress would have implicitly delegated the authority to resolve that question to the
relevant agency. Most recently, in his 2015 opinion for the Court in King v. Burwell, Chief Justice Roberts
concluded that the Chevron framework was inapplicable to the IRS’s proffered interpretation of certain
provisions of the Patient Protection and Affordable Care Act. In the view of the Court, the question of
whether certain tax credits were available for health care plans procured on federal health care exchanges
was “a question of deep ‘economic and political significance’ that [was] central to this statutory scheme;
had Congress wished to assign that question to an agency, it surely would have done so expressly.”
Instead, the Court analyzed the statute independently without any deference to the agency’s position.
Thus, when the major questions doctrine is invoked, it displaces Chevron deference. But the precise scope
of this major questions doctrine remains unsettled and there is scholarly dispute regarding its wisdom.
Chevron’s Future
Justice Kennedy’s retirement and the confirmation of Justice Kavanaugh to fill his seat have brought
renewed interest to the continuing vitality of Chevron. Prior to the Court’s most recent term, Justice
Kennedy had not seemed to take a strong stance on Chevron. But in June 2018, in an opinion concurring
in the Court’s judgment in Pereira v. Sessions, the now-retired Justice announced that he believed it
would be “necessary and appropriate to reconsider . . . the premises that underlie Chevron and how courts
have implemented that decision.” In particular, he said that some lower courts have not engaged in a
sufficiently rigorous examination of relevant statutes but were instead exhibiting “reflexive deference” to
agency interpretations, suggesting “an abdication of the Judiciary’s proper role in interpreting federal
statutes.” Justice Kennedy’s parting salvo has focused attention on his successor’s views on Chevron.
Prior to his confirmation to the Court, Justice Kavanaugh indicated skepticism of the doctrine in both
academic and judicial writings. In his scholarly writing, Justice Kavanaugh argued that the Chevron
doctrine incentivizes federal agencies to push the boundaries of their statutory authority, taking actions
unless “clearly forbidden.” He also criticized the mechanics of Chevron deference as imprecise. He is
troubled by the “threshold trigger” of ambiguity in Step One, arguing that it is difficult to develop
consistent rules to determine when a statute is sufficiently ambiguous. Justice Kavanaugh has indicated
that he is perhaps more likely to find clarity in statutory text than some other judges, meaning that he is
more likely to resolve a case at Chevron’s first step. In a law review article, he argued that the Chevron
framework of review should not apply when “an agency is . . . interpreting a specific statutory term or
phrase.” That said, he explained that while he believes courts should engage in more rigorous review of
an agency’s statutory interpretation, Congress sometimes clearly delegates discretion to an agency to
make policy choices within the terms of a statute. Courts should defer to agencies in situations where a
statute employs “broad and open-ended terms like ‘reasonable,’ ‘appropriate,’ ‘feasible,’ or ‘practicable.’”
Justice Kavanaugh’s judicial opinions from his time on the D.C. Circuit reflect these concerns. When
dissenting from the D.C. Circuit’s decision to deny rehearing en banc in United States Telecom
Association v. FCC, then-Judge Kavanaugh articulated a distinct approach to judicial review of agency
rules that might cabin the reach of Chevron deference. Citing the “major rules doctrine,” he wrote that
when courts review agency rules, “two competing canons of statutory interpretation come into play.”
Chevron deference applies, he wrote, to ordinary agency rules; but Congress must “clearly authorize”
major rules of great economic and political importance. If there is only ambiguous statutory authority to
support a major rule, according to then-Judge Kavanaugh, the rule is unlawful. This encapsulation of a
court’s role in reviewing agency rules is arguably distinct from past cases in which the Supreme Court has
declined to defer to an agency because of the importance of the issue; the requirement of a clear statement
to authorize a major rule is arguably a more stringent requirement than the Court typically requires to
justify agency regulation.

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Nevertheless, it is unclear whether there is a majority willing to overturn or expressly limit Chevron—or
even create the four-justice plurality necessary to grant certiorari. As discussed above, Justices Thomas
and Gorsuch have expressed broad and seemingly fundamental concerns about the Chevron framework,
suggesting they might be willing to overrule the case entirely. Justice Kavanaugh might provide a third
vote to sharply limit Chevron—although, as mentioned, he has stated that Chevron deference “makes a lot
of sense in certain circumstances,” particularly when Congress uses words like “reasonable” that, in his
view, more clearly impart policymaking discretion to agencies.
Some have speculated that Chief Justice John Roberts or Justice Samuel Alito might provide additional
votes to either strictly limit or overrule Chevron. However, neither has expressed clear opposition to the
Chevron framework as a whole. Other commentators have argued that, based on their past statements,
these two justices may be more willing to narrow than overrule Chevron. Both have, in the past, opposed
applying the Chevron framework of review to so-called jurisdictional questions, when an agency is
interpreting whether it has authority to regulate. And as noted above, Chief Justice Roberts declined to
apply the Chevron framework in King v. Burwell because of the significance of the question presented in
the case. Additionally, in a 2017 speech, Justice Alito (seemingly unfavorably) described the result of
Chevron deference as “a massive shift of lawmaking from the elected representatives of the people to
unelected bureaucrats.”
Finally, some have argued that Justice Stephen Breyer might also support narrowing Chevron’s scope—
albeit under a distinct theory. Justice Breyer has long argued that courts should employ a multifactor
inquiry when determining whether an agency interpretation is entitled to deference. He seemed to reassert
this view of Chevron this past term in a dissenting opinion in SAS Institute v. Iancu. In that dissent, Justice
Breyer emphasized that courts should not treat Chevron “like a rigid, black-letter rule of law, instructing
them always to allow agencies leeway to fill every gap in every statutory provision.” Instead, he said,
Chevron is “a rule of thumb, guiding courts in an effort to respect that leeway which Congress intended
the agencies to have.” To determine whether the disputed agency interpretation was entitled to deference
under Chevron, he then asked not whether the statute was clear or ambiguous, but instead looked to the
“statute’s complexity, the vast number of claims that it engenders, and the consequent need for agency
expertise and administrative experience.”
At least one law review article has suggested that the Supreme Court may want to retain Chevron as a
doctrine governing the lower courts—even if the High Court does not, in practice, strictly follow the
doctrine itself. This theory, too, suggests that the Court might be unlikely to overrule Chevron, even if the
Court narrows its application.
Looking to the current term, which started at the beginning of October 2018, the Supreme Court has yet to
agree to hear any cases expressly challenging Chevron or other Court rulings governing judicial deference
to agency action. The Court could, however, still add cases to its docket that present the issue. There are
at least two pending petitions for certiorari that may present the Court with the opportunity to further
clarify the proper scope of Chevron deference, both of which have been set for consideration at the
October 26 conference.
Further, as suggested at the outset, the Court has agreed to hear some cases that implicate doctrines of
agency deference, even if the parties in those cases do not challenge the general validity of those
doctrines. During its October sitting, the Court has heard oral argument on two cases in which the lower
court had applied the Chevron framework of review. First, in Weyerhaeuser Co. v. U.S. Fish and Wildlife
Service, the High Court is asked to review a decision by the U.S. Court of Appeals for the Fifth Circuit,
which concluded that it was appropriate to defer to the Fish and Wildlife Service’s interpretation of the
Endangered Species Act—an interpretation that allowed the Service to designate a certain area as a
critical habitat for the dusky gopher frog. Agency deference concepts, however, did not come up during
oral argument, although observers noted that the Court was engaged in significant debate over the proper
interpretation of the relevant statutory provision. Second, in Nielsen v. Preap, the High Court is reviewing

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a decision by the U.S. Court of Appeals for the Ninth Circuit on whether to defer under Chevron to the
Department of Homeland Security’s interpretation of a provision of the Immigration and Nationality Act.
The Ninth Circuit noted that two other federal courts of appeals had deferred under Chevron to the
agency’s interpretation, but ultimately concluded that the statute was unambiguous, ending its own
Chevron analysis at Step One. Although the parties’ briefs had discussed Chevron, the case was not
mentioned by name during oral argument before the Supreme Court. The concept of agency deference
came up only in passing, when counsel for the parties challenging the agency’s interpretation mentioned
that some courts had deferred to the agency’s reading. While any prediction of the Court’s decisions
would be premature at this time, the fact that the Justices used oral argument to explore statutory
meaning, absent any discussion of Chevron deference, may suggest that the Court will continue its recent
tendency to find clear meaning in statutes and resolve cases at Chevron’s first step, rather than deferring
to an agency’s interpretation.

Author Information

Valerie C. Brannon
Jared P. Cole
Legislative Attorney
Legislative Attorney

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