Chevron deference is running on fumes
As the current term of the U.S. Supreme Court heads toward its end in June, Court watchers are anticipating a decision that could mean the formal demise of a seminal ruling in administrative law. Before the court are two cases—Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, collectively referred to as Loper Bright—asking the Court to alter the deference currently given to administrative agencies when those agencies interpret federal statutes.
The current standard for agency deference, known as “Chevron deference,” arose from the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council and takes shape as a two-part test. In a case involving an administrative agency’s interpretation of a federal statute, the court first looks at whether Congress clearly addressed the issue through the language of the statute. If the language is clear, the court decides the case using standard methods of statutory interpretation. If the statute is ambiguous, the court determines whether the agency’s interpretation of the statute is reasonable, and, if so, the court defers to the agency’s interpretation. In practice, Chevron affords agencies substantial latitude to interpret federal statutes, which has led to wild swings in policy as new administrations take office and expand the influence and power of the administrative state over time. In the decades since Chevron, judicial originalists have targeted the case as one of the primary tools of executive overreach. If courts look to agencies to define their own power, it follows that the power of agencies will ratchet upward over time.
While some judicial scholars are awaiting the Loper Bright decision with prudence and understanding, some legal commentators on the left are responding apoplectically, claiming the end of Chevron would “kneecap” the federal government and embolden “billionaires and corporate behemoths at the expense of the American people.”
In reality, the effect of eliminating Chevron would be mixed. The power of Chevron has already waned considerably in recent years. Despite hearing a number of cases related to agency power and statutory interpretation, the Court has cited Chevron just a handful of times since 2016, and rarely have they continued the analysis through step two. Instead, the Court has interpreted the text of the statute for itself or argued that constitutional principles like the “major questions” doctrine should apply. A repeal of Chevron deference in Loper Bright would only formalize a process that has been under way for years.
At the same time, while the Supreme Court has been reluctant to invoke Chevron, the lower courts have continued to rely upon the 1984 precedent, to the benefit of the administrative agencies. An analysis conducted in 2022 found that even after the Supreme Court had shifted to a staunchly textualist 6-3 majority in 2020, circuit courts continued to apply Chevron regularly, with more than half of the cases coming out in favor of the agency and with substantial deference to the agencies when the analysis proceeded to step two.
If Loper Bright brings about the end of Chevron, our federal government would take a step closer to a healthier balance of powers. No longer would the judicial branch turn to the executive branch to divine the intent of the legislative branch. Instead, courts would be responsible for interpreting statutes for themselves, weighing alternatives offered by litigants on both sides. While such a change may feel untethered in the short term, the new regime would merely align challenges to agencies’ interpretations with the swaths of other cases where courts look to precedent, reason, and the canons of statutory construction to decide a case. It has long been the duty of the judiciary “to say what the law is,” and Loper Bright could once again restore the court to its role as the arbiter between competing interests.
Moreover, the end of Chevron would restore Congress to its rightful place as chief federal lawmaker. In the cases where the court disagrees with the administrative agency’s interpretation, the onus would shift back on Congress to express its legislative intent with clear statutory language. No longer would Congress be incentivized to write vague, sweeping statutes enabling agencies to regulate entire industries as they see fit. Instead, Congress would be encouraged to take input from subject matter experts and constituents, weigh tradeoffs, and write clear statutes. In turn, constituents can hold members of Congress accountable for the laws they pass, cutting through the all-too-common finger-pointing at administrative agencies that regularly takes place when rulemaking goes awry.
And yet, while Loper Bright could shift us toward a healthier balance of powers, administrative agencies would likely continue to hold outsized influence on statutory interpretation. When controversies are brought before the court, agencies would still have the benefit of subject matter expertise and the first-mover advantage of initially interpreting statutes during rulemaking. So long as agency rulemakers ground their new rules in reason and abide by the longstanding rules of statutory interpretation, no one should be surprised if agencies continue to win a majority of cases. In practice, courts are still likely to look to administrative agencies to interpret federal statutes, giving the executive branch slightly less, though still outsized, power to regulate our country.