The Supreme Court recently heard arguments in two cases in which plaintiffs asked the justices to reconsider the issue Chevron doctrine. The Court’s willingness to reconsider Chevron has been a long time. As I explained in my opening remarks at a recent Solomon Center panel at Yale Law School, concern for Chevronand in particular the way in which it has been applied in lower courts, has been building for some time.
Recall that in 2018, in Pereira against Sessions, in what would be one of his last opinions on the Court, Justice Anthony Kennedy raised profound concerns about how Chevron it has been understood and applied in lower courts.
At issue was the timing and amount of notice the federal government must give noncitizens and nonpermanent residents to trigger the stoppage rule, which can affect whether such individuals are allowed to remain in the United States.
Lower courts had initially adopted a rule requiring full notice to trigger the rule. Ultimately, however, in the context of individual sentences, the Board of Immigration Appeals disagreed. This prompted several circuit courts to adopt the contrary rule: a rule contrary to what the courts had previously determined was the best interpretation of the statute (and the interpretation that eight out of nine judges would later conclude was mandated by the statutory text).
Although there was little legal basis for the BIA’s miserly and belated, pro-deportation interpretation, a majority of circuit courts upheld it because the statute was ambiguous.
As Justice Kennedy noted, the type of analysis that courts have conducted in these cases to justify supporting the BIA’s interpretation, based on Chevronconstituted”an abdication of the judiciary’s proper role in interpreting federal statutes.”
Kennedy wrote:
The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other matters of statutory interpretation, such as an agency’s interpretation of statutory provisions that affect the scope of its authority, it is even more troubling.
Given the concerns raised by some Members of this Court, it appears necessary and appropriate to reconsider, where appropriate, the underlying premises Chevron and how the courts have implemented that decision. Appropriate rules for interpreting laws and determining the agency’s jurisdiction and substantive powers should conform to constitutional principles of separation of powers and the function and jurisdiction of the judiciary.
If Justice Kennedy expressed such concerns in 2018, it should not surprise us that, some five years later, with little noticeable change, the Court reconsidered Chevron.
As I see it, the Court has arrived at this point because of a number of concerns, some (but not all) of which Kennedy identified in Pereira.
First of all, in practice, Chevron it is often used to support interpretations of agency that have little to do with allowing agencies to exercise their delegated authority to make policy judgments based on agency expertise. The procedural question in Pereira would appear to be a good example of this.
Second, although Supreme Court decisions suggest that ambiguity alone is not enough to trigger alarm Chevron deference, lower courts often fail to engage in any meaningful “step zero” analysis to ensure that Congress has delegated relevant authority to the agency. Instead, Chevron it has become an excuse for courts to abdicate their responsibility to resolve legal issues in favor of agencies.
Third, as evidenced in several recent cases of major questions, agencies are increasingly seeing more Chevron as a license to go on a treasure hunt for plausible statutory authority to implement policies favored by the executive branch, whether or not those policies were authorized by Congress. In other words, instead of facilitating agencies’ ability to faithfully execute the law enacted by Congress, Chevron it is used to allow agencies to go their own way.
A fourth concern, more acute in areas where agencies make policy through rulings (such as in immigration and labor policy) is that agencies are able to change their interpretations – and thus change the applicable law – without going through a sort of open and deliberative regulation. process that ensures those who will be subject to the rule are given notice and an opportunity to be heard.
What these concerns have in common is that they all represent the failure of agencies and lower courts to take the idea seriously Chevron deference is based on delegation, and this idea necessarily entails limits Chevronthe domain of. While some initially tried to justify themselves Chevron on the separation of powers or on general political reasons, the decision of the Supreme CourtChevron case law (including, but not limited to, cases such as Mead) clarify that if Chevron must be justified, must be based on the conclusion that Congress has delegated such authority to the agency in question, and that where there is no indication that such delegation has occurred, there is no basis for courts to defer to the interpretation of the agency. Say it another way, Chevron deference should apply only in those cases where Congress can be presumed to have delegated authority to an agency to decide what is essentially a policy choice – for example whether a “source” of air pollution should be defined in a way to accommodate “bubble” policies – and not because agencies have inherent authority to make such choices.
A key question in Inflexible AND Brilliant runner is whether the concerns outlined above require a reversal Chevron. As for me, I’m skeptical. I have been on record suggesting that, in addition to the courts failing to enforce limits ChevronIt is common knowledge that the underlying question is the extent of the authority that Congress delegates to the agencies. In other words, a doctrine that focuses on delegation as a source of deference – as opposed to mere ambiguity – could probably solve the problem, but this requires clarifying how many understand Chevron. As Thomas Merrill noted on this blog, while parts of Chevron emphasize the need to determine whether Congress has delegated a given policy choice to the agency in question, other parts of the opinion suggest that ambiguity or silence is sufficient to justify deference. Some subsequent opinions, like the one in City of Arlington v. FCC, further muddied the waters.
As it happens, the application is submitted in both Brilliant runner AND Inflexible gives the Court ample space to address these issues. The deliberately and carefully presented question presents two possible ways to resolve the case and address Justice Kennedy’s concerns. Here is the QP for both cases:
Whether the Court should dismiss Chevron or at least clarify that statutory silence regarding disputed powers expressly but restrictively granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
The QP suggests the Court’s reversal Chevronbut it also gives the Court space to clarify (and perhaps reorient) Chevron focus on the issue of delegation – and do so in a way that aligns well with the Court’s recent doctrinal decisions on important issues. Specifically, the Court might point out that, before even considering whether to defer to an agency, it must first conclude that Congress has delegated authority to the agency in question to resolve a policy question by force of law, and that when a law is silent about the existence of an authority, the courts should presume that such authority does not exist. Statutory silence is just that: silence. It is not a delegation of power. (Of course, this is a position I have held for some time and have urged (unsuccessfully). Arlington.)
As I see it, imposing this type of limitation is the fundamental step. If this is done by tipping over Chevron“Kisorizing” Chevronor simply adopting that of the Chief Justice Arlington dissent is almost a stylistic choice. There’s plenty of it Chevron and subsequent cases to justify this result, even if this would overturn or repudiate some of the ways in which this has occurred Chevron it has been applied.
Note that as long as the Court focuses on delegation as the source of agency authority, without overturning or modifying it Chevron it would limit Congress’s ability to task agencies with distinct policy issues in areas informed by agency expertise. As Chief Justice Roberts noted at the beginning of the trial Inflexible topic, deferring to an agency on whether scientific or other evidence supports a particular conclusion is distinct from deferring to an agency’s interpretation of a regulatory text. Indeed, even if the Court were to overturn the sentence entirely Chevron in favor of the a SkidmoreSimilar to a similar regime, this need not preclude reliance on agency expertise, nor should it have any direct effect on how courts conduct arbitrary and capricious reviews and apply cases such as State farm.
This would suggest that some of the horror stories about a post-Chevron administrative state are rather overrated. The administrative state could operate earlier Chevron it was decided (and before it was even established as a doctrine), and the administrative state will persist regardless of how these cases are resolved.