Good riddance to Chevron deference, which the Supreme Court overturned Friday in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce. For decades, judges cited the 1984 case Chevron U.S.A. v. Natural Resources Defense Council as an excuse for shifting their responsibility to federal agencies. Specifically, on questions of statutory interpretation, courts would defer to agencies where the statutory text is “silent or ambiguous” as long as that interpretation “is based on a permissible construction of the statute.” That effectively meant putting a two-ton judicial thumb on the scale of government bureaucrats against the little guy. This latest decision is a major victory for the rule of law.
In these cases, the Magnuson-Stevens Fishery Conservation and Management Act requires certain categories of fishing vessels to carry and pay federal observers charged with enforcing agency regulations, subject to a salary cap at 2–3% of the value of the fish harvested on the vessels. But the National Marine Fisheries Service claimed without statutory authorization the right to force fishing boats to pay government monitor salaries of up to 20% of their revenues.
Chief Justice John Roberts’ opinion for an ideologically split 6–3 Court worked from first principles about the judicial role, from Alexander Hamilton identifying the final “interpretation of the laws” to be “the proper and peculiar province of the courts” in Federalist 78 to Chief Justice John Marshall’s famous axiom in Marbury v. Madison that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”
Roberts traced the long pedigree of courts assuming their duty to interpret the law. That did not mean agencies had nothing to offer. Quoting the Court in Skidmore v. Swift & Co. (1944), Roberts recognized that agency interpretations “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” This is part of the “traditional understanding of the judicial function” incorporated into the Administrative Procedure Act of 1946 that the Court recognizes, as is the obligation of judges to retain their interpretive prerogative:
The APA . . . codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, §706 (emphasis added)—even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential.
Moreover, “by directing courts to ‘interpret constitutional and statutory provisions’ without differentiating between the two, Section 706 makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference.” Chevron deference simply “cannot be squared with the APA.” After all, “[i]t requires a court to ignore, not follow, the reading the court would have reached had it exercised its independent judgment as required by the APA” (internal quotation marks omitted). It forces courts to “mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time.” Justice Clarence Thomas added in a concurrence that Chevron violates the separation of powers “[r]egardless of what a statute says.”
This is a Court that cares about the separate but coequal branches of government doing what they are supposed to do. And while the dissent for the liberal bloc by Justice Elena Kagan predictably protested that the majority acted with “no special reasons, of the kind usually invoked for overturning precedent,” Chevron as precedent has been eroding for years. The Court has not been inclined to find its preconditions triggered and by the majority’s own acknowledgement “has not deferred to an agency interpretation under Chevron since 2016.” In appropriate cases, it has applied the “major questions doctrine” to strike down agency actions with broad economic and political significance undertaken without “clear congressional authorization”—a line of cases the supposedly stare decisis–embracing dissent derides as “judicial hubris.” Lower courts have been inconsistent in applying Chevron, which should be no surprise in the face of what the majority described as its “byzantine set of preconditions and exceptions”—a “dizzying breakdance” the Court admitted took place as it previously grappled with the “unworkable” precedent. Congress, for its part, needs to do more of its job, articulating what the rules are itself instead of abdicating in favor of unelected bureaucrats who are not given that power under the Constitution.
The operative standard going forward will be the one the Court handed down in Skidmore 80 years ago. Agency judgment deserves a level of consideration consistent with “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Agencies have no legitimate complaint about this outcome. If they want to win in the future, they need to do a more careful job—play fair and realize that they will win or lose based on the merits of their position rather than favoritism.
The common talking point on the other side about agency expertise is untethered to reality, which is that agency officials often push their own agendas regardless of whether that would contort the underlying law. While the dissent touted the value of what it unconvincingly called the “expert, experienced, and politically accountable agency,” the majority recognized that “agencies have no special competence in resolving statutory ambiguities.” Resolving such ambiguities is “the very point of the traditional tools of statutory construction” that courts have, and “[t]hat is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.”
The Court is not putting itself in the place of experts. It is not claiming to be an expert on policy but sticking to its strength, interpreting the law, and making sure agencies remain within their bounds. It is acting as a referee that is weighing competing interpretations of a federal statute. The Court’s decision means that it will no longer put its heavy thumb on the scale of claims by agencies. Agency officials will now have to do their homework and win on the merits, not on favoritism.