Chevron Deference in the Courts of Appeals

Chevron Deference in the Courts of Appeals

Legal Sidebari

Chevron Deference in the Courts of Appeals
June 8, 2023
Chevron U.S.A. v. Natural Resources Defense Council is one of the most important cases in administrative
law. Decided in 1984, it was the genesis of a legal framework for federal courts to apply when deciding
whether to defer to a federal agency’s interpretation of a statute. It has, however, become an increasingly
controversial precedent that the Supreme Court has applied less and less frequently over the last decade.
The Court is now poised to revisit Chevron in the upcoming case Loper Bright Enterprises v. Raimondo.
The courts of appeals decide many more Chevron cases than the Supreme Court, and they play an
important role in shaping the Chevron framework. In general, the courts of appeals apply Chevron more
often than the Supreme Court and application of the Chevron framework in the courts of appeals has a
greater bearing on the outcome of the case than at the Supreme Court. An examination of federal courts of
appeals practices applying the Chevron framework therefore sheds light on how the Chevron framework
operates in the vast majority of cases where it is at issue.
A handful of studies have evaluated how the courts of appeals apply Chevron, and the picture that
emerges is markedly different from the way the Supreme Court applies it. Furthermore, a close
examination of the courts of appeals practices themselves reveals significant variations in how Chevron is
applied. Studies have identified large variations in how courts apply Chevron depending on which court
heard the appeal, the agency party to the case, and the subject matter of the appeal, among other factors.
Given this patchwork application of the Chevron framework it can be difficult for agencies and Congress
to reliably predict which agency’s statutory interpretation will receive deference under the Chevron
framework. Regardless of the Supreme Court’s consideration of Loper Bright Enterprises, Congress
likely has the authority to codify, modify, or eliminate Chevron deference, and therefore can shape
through legislation how the federal courts review agency interpretations of federal statutes.
Background
The Chevron framework is one of a suite of related doctrines that sets out the circumstances under which
courts must defer to an executive agency’s interpretation of a federal statute that it administers. Under the
Chevron framework, a court must defer to an executive agency’s interpretation of an ambiguous statute
that it administers so long as the agency’s interpretation is reasonable. The framework takes its name from
a 1984 Supreme Court case, Chevron U.S.A. v. Natural Resources Defense Council, which sets out a two-
step process for determining whether a court must defer to an agency’s statutory interpretation.
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The Chevron framework of review usually applies if Congress has given an agency the general authority
to make rules with the force of law. If a court determines that Chevron applies, at step one it will use the
traditional tools of statutory construction to determine whether Congress directly addressed the precise
issue before the court. 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 the court concludes instead that 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. The Chevron framework
rests on several related assumptions, including that statutory ambiguity indicates congressional delegation
of interpretive authority; agencies have more expertise interpreting the statutes they administer; and
agencies are politically accountable and therefore have more claim to make policy than courts.
Chevron is unquestionably one of the foundational decisions in administrative law. A search of the
Westlaw electronic database indicates that, at the time of this writing, the Supreme Court and lower
federal courts have cited the Chevron decision more than 18,000 times. In the last decade or so, however,
the Chevron framework has come under increasing fire from various corners of legal academia, the
courts, and the political branches. Over that same period, the Supreme Court has relied on the Chevron
framework less and less. It is difficult to identify a single cause for the Court’s recent silence on Chevron,
but changes in the Court’s personnel as well as increasing attacks from some corners of academia may
account for some of the Court’s reluctance to rely on the doctrine. In the Court’s most recent full term,
Chevron went unmentioned in three cases where an agency interpretation of federal law was at issue,
leading some to speculate that the Court might soon overrule or at least curtail the Chevron framework.
Supreme Court litigators have been equally unwilling to invoke Chevron before the Court. In a notable
exchange in a 2019 oral argument, a prominent Supreme Court advocate concluded by admitting “I hate
to cite it, but I will end with Chevron.”
Adding to the speculation about the fate of Chevron, in late 2022, the Court declined to hear Buffington v.
McDonough—a case that presented the Court the opportunity to revisit Chevron and possibly provide
clarity to the lower courts. Justice Gorsuch issued a dissent calling attention to the growing differences
between the Court’s application of Chevron and the courts of appeals, noting that while the Supreme
Court appears content to ignore Chevron, the lower courts do not have that luxury. (Supreme Court
decisions are binding on all lower courts.) The Court, he argued, owes the lower courts clarity by
explicitly overruling Chevron.
The Court may ultimately provide clarity to the lower courts when it decides Loper Bright, which it is
scheduled to hear in its October 2023 term. In agreeing to hear Loper Bright, the Court explicitly confined
its consideration to the question whether it should overrule or clarify Chevron.
Chevron in the Courts of Appeals
Differences Between the Supreme Court and Courts of Appeals
Although the Supreme Court may have reduced its application of Chevron over the last decade, the courts
of appeals have not. Because Supreme Court decisions bind lower federal courts, they generally must
apply the Chevron framework when reviewing agency interpretations of statutes that the agency
administers.
Differences between the way the Supreme Court applies Chevron and the way the courts of appeals apply
it are nothing new. A 2017 study that evaluated over 1,300 courts of appeals cases from 2003 to 2013—
the largest study of courts of appeals decisions that refer to Chevron—found that the courts of appeals on
average applied Chevron in close to three-quarters of cases addressing agency interpretations. From
roughly the mid-1980s to the mid-2000s, studies found that the Supreme Court applied Chevron to about

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one-quarter to one-third of cases where an agency interpretation is at issue. That number dropped to zero
in the Court’s most recent full term, continuing a decade-long trend of referring less and less to Chevron.
A subsequent study that surveyed courts of appeals cases from 2020 to 2021, however, revealed that
courts of appeals still apply Chevron at similar rates as those founds in the 2017 study. In the more recent
study, courts of appeals applied Chevron in close to 85% of cases where an agency interpretation was at
issue.
Further, agencies were significantly more likely to prevail when a court applied the Chevron framework
(77.4%)—even if the court decided that the statute was unambiguous and did not defer to the agency’s
interpretation—than when a court applied no deference regime whatsoever (38.5%). Conversely, at the
Supreme Court, various studies have found that the application of Chevron has little effect on the outcome
of the case. At the Supreme Court, a 2006 study found that agencies prevailed about 76% of the time
when the Court applied Chevron—similar to agencies’ win rate in cases where the Court did not apply
Chevron. This difference has led some to claim that there is a “Chevron Supreme and a Chevron Regular.”
Given the Supreme Court’s recent silence on Chevron, the gap between the Supreme Court and the courts
of appeals has only widened.
Differences Between Resolution at Step One and Step Two
Whether the court resolved the appeal at step one of Chevron or step two had a significant impact on the
likelihood the agency would prevail. Drawing from the 2017 survey that studied over 1,300 cases decided
from 2003 through 2013, the courts of appeals resolved 30% of cases at step one (i.e., the step where
courts ask if the statute is clear), but of those cases, the agency prevailed only 39% of the time. These
rates have largely been consistent over multiple decades. In the survey of cases from 2020 and 2021, the
proportion of cases decided at step one increased to roughly 40% and the agency win rate at step one fell
to approximately 33%, indicating that courts of appeals may be becoming less deferential.
In the same 2017 study, 70% of agency interpretation cases make it to step two, in which courts ask if the
agency’s interpretation is reasonable. Nearly all agency interpretations are found to be reasonable at step
two (93.8%). Over the course of the eleven-year study period of the 2017 study (2003-2013), agencies
lost 51 cases out the 817 that made it to step two. Interestingly, the Fourth Circuit did not invalidate a
single agency interpretation at step two in the eleven-year study period. The 2020-2021 study again
indicated that the courts of appeals may be becoming less deferential. Some 59% of cases made it to step
two and agencies won 78% of those cases. Even assuming the more recent survey accurately depicts a
less deferential federal appellate judiciary, the scholars responsible for the survey observed that “[t]he
conventional wisdom is certainly [still] true: Once a court decides to apply the Chevron framework, the
critical litigation battleground takes place at step one.”
Different Circuits Apply Chevron Differently
Breaking down the data by circuit reveals significant variation between the various courts of appeals. In
the 2017 study referenced above, the D.C. Circuit led the way in applying Chevron, relying on it in
approximately 89% of cases that concerned agency interpretations of a statute. The Sixth Circuit applied
Chevron in 61% of cases involving an agency interpretation.
Once a court of appeals applied Chevron, they are highly deferential to agencies. The overall agency win
rate across all courts of appeals in the 2017 study was approximately 77%. The most deferential circuit
was the First Circuit, where agencies prevailed in almost 83% of cases. The Ninth Circuit, conversely,
was the least deferential circuit in the study, ruling for the agency in approximately 66% of the cases. The
D.C. Circuit—the circuit often seen as having the most administrative law experience—was in the middle
of the pack (73%). Although the Sixth Circuit applied Chevron less often than every other circuit, when it

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did apply Chevron, agencies won 88% of cases. The Second and Seventh Circuits had similar differentials
between applying Chevron and win rates after Chevron was applied.
Ultimately, the study authors could not identify a discrete factor that could account for the differences
across circuits. The study authors found that variations in subject matter could account for some of the
variation between circuits. For example, the Ninth Circuit hears a large number of immigration appeals.
Removing those appeals from the 2017 study’s data set, the agency win rate at the Ninth Circuit rose to
74%—roughly in line with the average. Other factors, such as the composition of the panel of judges
hearing the appeal, also accounted for some of the differences.
Agency and Subject Matter are Important
The subject matter of the case and the agency advancing the interpretation was correlated with Chevron
outcomes in the 2017 study. Courts of appeals applied Chevron at high rates (75%-100%) to cases
involving telecommunications, Indian affairs, and pensions, and courts deferred to agencies under
Chevron at similar rates (83%-92%) in those same subject matter areas. Conversely, courts applied
Chevron less frequently (52%-67%) in cases involving housing, tax law, and employment. Furthermore,
even when the courts applied Chevron in this latter group of cases, win rates for agencies were
comparatively low (69%-81%). Cases involving energy issues displayed a different pattern: While courts
applied Chevron in almost every case (96%), the relevant agency won 60% of the time when Chevron was
applied.
There was a significant overlap in case outcomes between subject matter and agency. Nonetheless, there
were some outliers to this trend. Courts deferred under Chevron to the Surface Transportation Board
(including its predecessor agency, the Interstate Commerce Commission) in all 16 cases involving the
agency in the study (100%) even though courts deferred under Chevron in cases involving transportation
issues 81% of the time.
Finally, a handful of agencies prevailed more often when courts did not apply Chevron. For instance, the
Federal Trade Commission had a 91% overall win rate, but a 75% win rate after courts applied Chevron.
Similarly, the Bureau of Prisons had a 74% overall win rate, but won 62% of its cases after courts applied
Chevron.
What Courts of Appeals Judges Think of Chevron
A 2018 study of 42 federal appellate judges surveyed their views on the Chevron framework, among other
topics. The survey revealed that, with some notable exceptions, most judges surveyed do not favor the
Chevron framework. For example, some question its key underlying assumptions that ambiguity in
statutory text indicates congressional delegation and that agencies have special expertise interpreting the
statutes that they administer. All judges surveyed, however, believe they are bound by Supreme Court
precedent to apply the Chevron framework.
Judges’ views about Chevron’s fundamental assumptions appear to be reflected in the absence of
discussion of those assumptions in judicial opinions applying Chevron. Returning to the 2017 study of
over 1,300 courts of appeals cases, the study found that judges rarely invoked agency expertise as a
justification for the application of Chevron, while less than 20% of cases examined whether Congress
granted the agency rulemaking authority.
The study also revealed what it dubbed the “D.C. Circuit effect.” Unlike their counterparts on other courts
of appeals, judges on the D.C. Circuit are “generally comfortable” with the Chevron framework and see it
as a “part of the basic wiring” of evaluating agency statutory interpretations. They also appear to be more
comfortable with some of Chevron’s core assumptions about agency expertise in interpreting the statutes
that they administer and the political accountability of agencies.

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Considerations for Congress
The Supreme Court applies Chevron differently from the court of appeals, the courts of appeals apply
Chevron differently from one another, and the courts of appeals treat different agencies differently in
applying Chevron. Congress likely has the authority to address this patchwork application of Chevron if it
found it appropriate, or even to eliminate Chevron altogether. Article III of the Constitution has been
interpreted to provide Congress the authority to create standards of review for the federal courts and direct
which courts hear certain cases. The House of Representatives in the 114th and 115th Congresses passed
the Separation of Powers Restoration Act (SoPRA) that would eliminate the Chevron framework if
enacted. SoPRA has also been introduced in the 118th Congress. Eliminating Chevron may not produce
uniform interpretations of federal statutes across the federal courts, however. If the lower courts were no
longer required by Chevron to defer to some agency interpretations, they would be more likely to rely on
their own interpretations of federal law, and different courts may end up differing on their interpretations
of the same provisions.
Congress also likely has the authority to require courts to apply the Chevron framework, although some
have argued that Chevron violates Article III by transferring interpretive authority from the courts to the
executive branch. If Congress were to require the application of the Chevron framework, it could do so in
a number of different ways. For instance, it could require courts to apply Chevron in all cases of agency
statutory interpretation. It could attempt to prescribe additional standards for the application of Chevron
as a way to bring consistency to the practices of the courts. It could also require courts to apply Chevron
in some cases of agency statutory interpretation, but not others. Finally, an additional way to reduce the
patchwork application of Chevron might be for Congress to direct certain courts to hear cases arising
from particular agencies, as the D.C. Circuit already does for some kinds of agency actions.

Author Information

Benjamin M. Barczewski

Legislative Attorney

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