Chevron at the Bar: Supreme Court to Hear Challenges to Chevron Deference
Legal Sidebari
Chevron at the Bar: Supreme Court to Hear
Challenges to Chevron Deference
October 26, 2023
In what has the potential to be one of the most consequential decisions in administrative law, the Supreme
Court is scheduled to evaluate the constitutionality of the Chevron framework in its 2023 term in a pair of
cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. The
Chevron doctrine requires federal courts to defer to a federal agency’s reasonable interpretation of
ambiguous statutory provisions the agency administers.
For the better part of four decades, Chevron has been one of the foundational decisions in administrative
law, governing the relationship between agencies and courts in matters of statutory interpretation and
acting as a backdrop against which Congress has legislated. As one scholar put it: Chevron “is the most
talked about, most written about, most cited administrative law decision of the Supreme Court. Ever.” For
the past decade or so, however, Chevron has come under increasing fire from some corners of the federal
judiciary and legal academia. Once cited often and approvingly by a majority of Supreme Court Justices,
Chevron appears to have recently fallen into desuetude at the Court. Over the past several terms the Court
has declined to apply or even cite Chevron in cases where it may once have governed. Other methods of
statutory interpretation, such as the major questions doctrine, appear to have displaced Chevron, at least in
some instances. Chevron’s absence at the Court has not gone unnoticed either, with several Justices
commenting on Chevron’s absence as evidence that it should be overruled.
Both Loper and Relentless raise the same challenge to a decision by the National Marine Fisheries Service
(NMFS) to require commercial fishing vessels to pay for observers to ensure compliance with regulations
governing the herring fishery in the Atlantic. NMFS issued the regulation based on its interpretation of the
Magnuson-Stevens Act (MSA), which empowers NMFS through delegated authority from the
Department of Commerce to regulate commercial fishing. The petitioners—four fishing companies in
Loper and two vessel owners in Relentless—contend that the MSA is silent on whether NMFS has
authority to impose industry-funded monitoring. The petitioners ask the Court to overrule Chevron or,
short of that, to limit its application in situations where a statute is silent “concerning controversial
powers expressly ... granted elsewhere in the statute.” As Loper and Relentless raise the same challenge to
the same agency action, for the purposes of describing the statutory and procedural background, this
Sidebar will only refer to the Loper appeal.
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Background
The Chevron Framework
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.
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 regardless of whether the
court would adopt that interpretation on its own. The Chevron framework rests on several related
assumptions, including that statutory ambiguity indicates a congressional delegation of interpretive
authority, that agencies have more expertise than courts to interpret the statutes they administer, and that
agencies are politically accountable and therefore have more claim to make policy than courts.
Loper’s Path to the Supreme Court
Congress passed the MSA to “conserve and manage the fishery resources ... of the United States.” The
MSA authorizes NMFS to implement a fishery management program to achieve these goals. The MSA
creates eight fishery management councils, each responsible for a different region. Councils can propose
fishery management plans that NMFS can approve or deny. The MSA requires that a plan include certain
provisions while making other requirements optional. Plans “shall contain the conservation and
management measures” that are “necessary and appropriate for the conservation and management of the
fishery.” Among the discretionary provisions, plans “may require that one or more observers be carried on
board a vessel ... , for the purpose of collecting data necessary for the conservation and management of
the fishery.” The MSA also permits plans to include measures “determined to be necessary and
appropriate for the conservation and management of the fishery.”
The MSA expressly permits or requires vessels to bear the cost of observers in three instances. First, the
North Pacific Council may station observers on vessels and establish a system of fees to pay for those
observers. Second, for certain programs that specify the quantity of allowable catch—known as limited
access privilege programs—the MSA requires observers to be stationed on vessels and requires those
vessels to cover the cost. Third, in cases where a foreign vessel is fishing in the U.S. exclusive economic
zone, the MSA requires an observer to be stationed on the vessel and requires the vessel to cover the cost.
In 2020, prompted by amendments proposed by the New England Council (the council responsible for the
Atlantic herring fishery), NMFS promulgated an “omnibus amendment” to all New England fishery
management plans. The amendment requires fishing vessels to bear the cost of observers in cases when
Congress has not appropriated the funds to cover the costs.
Four fishing companies that participate in the Atlantic herring fishery filed suit against NMFS, alleging
that the MSA did not authorize NMFS to mandate industry-funded monitoring. The district court found in
favor of NMFS, holding that Chevron governed its analysis and that the provisions of the MSA that apply
to the New England Council unambiguously authorizes industry-funded observers. A divided panel of the
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U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) affirmed. As with the district court, the D.C.
Circuit felt bound to apply Chevron but found the MSA silent as to whether NMFS could require
industry-funded monitors in the Atlantic herring fishery. The court then proceeded to step two of Chevron,
finding NMFS’s interpretation reasonable. The court explained that the MSA’s “necessary and
appropriate” provision, combined with the authority to require vessel monitors, rendered NMFS’s choice
to require industry to fund the monitors reasonable.
The Petitioners’ Case Against Chevron
The fishing companies raise three constitutional claims before the Supreme Court. First, they argue that
Chevron violates Article III—which vests all judicial power in the federal courts—by shifting interpretive
authority of federal law from the courts to the executive branch. Second, Chevron violates Article I when
it functions to permit agencies to formulate policy, because Article I vests Congress with all lawmaking
power. Finally, Chevron violates due process by tipping the scales in favor of the federal government in
litigation with private citizens.
The petitioners’ Article III argument rests at its core on an understanding that if any power is included in
the judicial power vested in the federal courts by Article III, it is the power to render authoritative
interpretations of federal law. In American law, this proposition traces its origin to the foundational 1803
case Marbury v. Madison. In Marbury, Chief Justice John Marshall declared that “it is emphatically the
province and duty of the judicial department to say what the law is.” The petitioners argue that it is
impossible to square Chevron with this interpretation of Article III because, where Chevron deference
applies, a federal court must defer to the agency’s interpretation rather than rendering its own
interpretation.
Petitioners’ related Article I argument centers on Article I’s Vesting Clause, which vests all lawmaking
power in Congress. The Chevron decision rested its outcome on two related assumptions that implicate
Congress’s lawmaking power. First, as already noted, Chevron assumes that an ambiguity or a gap in a
statute indicates congressional intent to delegate interpretive authority to the agency. This interpretive
authority, the Chevron Court reasoned, gives an agency, rather than a court, the space to make policy
where Congress did not explicitly specify a policy choice. Keeping politically unaccountable judges out
of the “formulation of policy” was one of the main aims of the Chevron decision. The petitioners argue,
however, that Chevron’s recognition that agencies have lawmaking power that courts are bound to respect
in some instances raises Vesting Clause problems—specifically, that it violates the nondelegation doctrine
by unlawfully delegating lawmaking power to administrative agencies. Though a number of current
Justices have expressed a desire to apply a more robust form of the doctrine, the Court has relied on it
only twice, in a pair of cases from 1935, to strike down a congressional delegation of power to an agency.
So long as the statute provides the agency with an “intelligible principle” by which to exercise its
discretion, it will pass muster. The petitioners acknowledge this history but assert that the Court has been
reluctant to enforce the nondelegation doctrine because the Court has yet to develop a manageable
standard for when a delegation to an agency crosses from an administrative function to lawmaking power.
According to the petitioners, the Court should not openly endorse delegations of the type Chevron
enables, even if the Court has yet to develop a standard that would prevent all delegations of lawmaking
power.
The petitioners final constitutional argument asserts that Chevron violates due process principles by
undermining the Constitution’s fundamental commitment to fair trials and fair tribunals. The petitioners
argue that requiring a court to defer to an agency’s interpretation of federal law tilts the scales in favor of
the government—the most powerful litigant. To provide a fair trial and fair tribunal, courts must resolve
contested terms in a statute independently and without resort to deference.
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The Government’s Case for Chevron
The government’s response brief defends Chevron as an appropriate, circumscribed, and historically
grounded approach to the limitations of the federal courts in interpreting statutes administered by a
federal agency. The government contends that when applied appropriately the Chevron framework
includes sufficient safeguards to ensure that agencies do not have free license to usurp Congress’s
lawmaking authority. For instance, Chevron applies only where the statute is ambiguous. Where Congress
has spoken clearly, the statute controls. In cases where the statute is ambiguous, only an agency’s
reasonable interpretation deserves deference. Moreover, Chevron applies only when Congress has
provided the agency with the authority to speak with the effect of law. Finally, the government argues that
the major questions doctrine provides an additional safeguard by limiting Chevron’s application where a
regulation of major political or economic significance is at issue.
Relying on the original justifications of the Chevron framework outlined by the Court in the Chevron case
itself, the government asserts that Chevron plays an important role in keeping courts out of policymaking.
Courts, the government argues, have neither democratic accountability nor policy expertise. As the Court
has observed, when a statute is susceptible to multiple reasonable interpretations, reconciling conflicting
interpretations is “often more a question of policy than law.”
The government’s response also traces a long line of judicial deference to executive actions dating back to
the beginning of the Republic through the Chevron decision itself. In a direct response to the petitioners’
invocation of Marbury, the government points to another one of Chief Justice Marshall’s statements from
that case: “The province of the court is ... not to enquire how the executive, or executive officers, perform
duties in which they have a discretion.” The government argues that Chevron took this well-established
tradition of deference and provided a framework to standardize its application.
The government further argues that none of the petitioners’ constitutional arguments are availing.
Responding to the petitioners’ Article III argument, the government argues that a judicial determination
that a statute delegates authority to an agency to resolve an ambiguity or a gap is consistent with Article
III’s requirement that courts interpret the law. If Congress actually delegated authority to the agency, a
court independently determining that a statute’s best reading requires delegation is an interpretation that
fulfills Article III’s requirements.
The government’s response to the petitioners’ Article I argument notes that the Court has consistently
applied the intelligible principle test to nondelegation cases. In its application of that test, the Court has
held that agencies may fill in the details of a statutory scheme where Congress has not made a policy
choice.
Lastly, in response to the petitioners’ due process arguments, the government argues that the Court’s
judicial due process cases are uniformly directed at the possibility of actual bias on the part of the
presiding judge. Chevron is unrelated to that analysis. Further, the government argues that it is misguided
to argue that Chevron unfairly favors the executive branch in litigation, because when courts apply
Chevron they are giving effect to policy choices made by an executive branch agency subject to the
accountability of the President through national elections.
Issues to Consider
The Chevron framework raises a number of practical considerations that may affect how the Court
approaches the Loper case. The federal courts have cited it tens of thousands of times in the past forty
years, making it one of the most cited cases in history. The Supreme Court alone has cited Chevron 238
times and applied Chevron in more than 100 decisions.
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Despite its widespread use, however, petitioners argue that the Chevron framework is unworkable. The
petitioners point to the Court’s decision in United States v. Mead Corp. as evidence that Chevron’s
growing complexity has confused courts and litigants to such an extent that it must be scrapped. The
Court in Mead held that courts must engage in a Chevron “step zero” analysis to ascertain whether
Congress in fact delegated to the agency the authority to act with the force of law before it can apply
Chevron. The Court took up this issue on two other occasions (Christensen v. Harris County and Barnhart
v. Walton) but failed to agree on the indicia of implicit congressional delegations. Some have called this
trio of cases a “puzzle,” while others have noted that lower courts rarely apply Chevron’s step zero.
The petitioners also note that courts disagree on when a statute is ambiguous enough to trigger Chevron’s
second step. If it is difficult to ascertain both when Chevron applies and when to move from its first step
to its second, the petitioners argue, Chevron is too unworkable to be saved.
Nonetheless, the Court may view Chevron’s benefits as justifying any difficulties in its application.
Courts have become accustomed to applying Chevron over the past forty years and apply it regularly.
Moreover, Chevron has likely taken on its significant role in the federal courts, in part, due to the
differential capacity of the Supreme Court and the lower federal courts to engage in independent review
of statutory interpretations. While the Supreme Court hears roughly 75 cases per year—a handful of
which involve an agency interpretation of law—each lower court might handle thousands of cases per
year. The Supreme Court may have time to engage in independent review of each interpretation advanced
by an agency, but the lower courts likely do not. Some contend that Chevron may save lower courts time
by permitting them to engage in meaningful review without having to start from scratch. Removing this
tool, they argue, would add to the already heavy burden of the federal courts and could result in lower
quality decisions, as generalist judges may lack the time and expertise to deeply engage in complex
statutory schemes.
Overruling Chevron could be a seismic shift in the relationship between courts and agencies. As the
government notes in its brief, Congress has legislated against Chevron and could have at any time
modified or abolished it. Overruling Chevron could also unsettle prior court decisions deferring to agency
interpretations as reasonable. It is not clear whether those cases would have to be relitigated if the Court
overruled Chevron.
It is possible that were the Court to overrule Chevron, lower courts might turn to other forms of
deference, such as Skidmore deference. Skidmore deference is generally considered less deferential than
Chevron. Skidmore merely permits the court to weigh the agency’s interpretation in proportion to its
power to persuade. Skidmore, however, has received far less attention from the courts than Chevron has
and may need additional development by the courts to refine its application.
Author Information
Benjamin M. Barczewski
Legislative Attorney
Disclaimer
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