In Loper Bright Enterprises v. Raimondo, the Supreme Court recently overturned the Chevron doctrine, a 40-year-old doctrine that requires federal courts to defer to federal agencies' interpretation of ambiguous statutes. Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, Nos. 22-451 and 22-1219, 2024 WL 3208360 (June 28, 2024). This article describes the Chevron doctrine and the Loper Bright decision overturning it.
The Chevron Doctrine
Under the Chevron doctrine--named after the Supreme Court's 1984 decision adopting it--a federal court, in reviewing a statute delegating power to a federal agency, must defer to the agency's construction of the statute, if the statute is "ambiguous" and the agency's construction "permissible." Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984). The court must defer even though the court would construe the statute otherwise. Id. at 843 n. 11. The court must defer even if the agency construction is not contemporaneous with the statute's enactment, and has changed over time. Id. at 863-64; Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). Thus, Chevron greatly circumscribed the traditional judicial role in interpreting the nation's laws.
Although the Supreme Court faithfully applied the Chevron doctrine after its adoption, the Court has increasingly declined to apply the doctrine in later cases, and has instead exercised its own independent judgment in reviewing ambiguous federal statutes. An example of this trend is the Supreme Court's increasingly skeptical review of federal agency interpretations of the phrase "waters of the United States" in the Clean Water Act, 33 U.S.C. § 1362(7), which is the basis of federal jurisdiction under the Act. The Court in 1985 deferred to the Army Corps of Engineers' view that the phrase included wetlands adjacent to navigable waters, United States v. Riverside Bayview, Inc., 474 U.S. 121, 131-32 (1985)--but in 2001 declined to defer to the Corps' view that the phrase included isolated waters, stating the Corps' view impinged on the states' traditional authority to regulate water, Solid Waste Agency v. Army Corps of Engineers, 531 US. 159, 172-173 (2001)--and in a recent 2023 decision did not even mention Chevron in rejecting the EPA's view that the phrase included wetlands separated from navigable waters. Sackett v. EPA, 598 U.S. 651 (2023).
The Supreme Court recently adopted, by name, the major questions doctrine, which holds that Congress presumptively does not grant power to federal agencies to regulate matters that have significant political and economic effects unless Congress clearly expresses its intent. E.g., West Virginia v. EPA, 597 U.S. 697, 721-23 (2022); Utility Air Regulatory Group v. EPA, 373 U.S. 302, 324 (2014). The major questions doctrine undermined Chevron by ignoring it altogether in reviewing federal regulations that have political and economic consequences.
Chevron was plainly on the Supreme Court's chopping block. The Court dropped the axe in Loper Bright.
The Loper Bright Decision
In Loper Bright, the Supreme Court flatly stated "Chevron is overruled." 2024 WL 3208360, *22. Leaving no doubt, Justice Gorsuch's concurring opinion stated that the Court "places a tombstone on Chevron no one can miss." Id. *23. The Loper Bright decision was sharply divided between the Court's conservative and liberal justices, with the six conservative justices in the majority (Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett), and the three liberal justices in dissent (Justices Kagan, Sotomayor, and Jackson).
The Court's majority decision, written by Chief Justice Roberts, overturned Chevron on both constitutional and statutory grounds. First, the Court held that the doctrine conflicts with the Constitution's separation of powers between the legislative, executive and judicial branches of government, id. *8-9--a point accentuated in the concurring opinions of Justice Thomas, id. *22, and Justice Gorsuch, id. *23. Under the Constitution's separation of powers, "[t]he judicial power shall extend to all cases . . . arising under . . . the laws of the United States." U.S. Const., art. III, § 2. As Chief Justice Marshall stated long ago in Marbury v. Madison, 5 U.S. 137, 177 (1803), "[i]t is emphatically the province and duty of the judicial department to say what the law is." Based on these and other authorities, Loper Bright concluded that the Constitution delegates authority to the judicial branch and not the executive branch to interpret ambiguous federal laws.
Second, Loper Bright held that the Chevron doctrine conflicts with the Administrative Procedures Act (APA), enacted in 1946, which establishes procedures that federal agencies must follow in adopting regulations and parties must follow in challenging them. 2024 WL 3208360, *12-14. Under the APA, "the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." 5 U.S.C. § 706. As Loper Bright stated, "[t]he APA . . . incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions." 2024 WL 3208360, *13. To the extent Loper Bright based its decision on the APA, Congress could, at least in theory, modify the APA to restore the Chevron doctrine, if it chose.
In her dissenting opinion, Justice Kagan argued that federal agencies have greater expertise than the courts in construing statutes that they are charged with administering, particularly concerning statutory policy and technical and scientific matters. Id. *42-43, 52. "Judges are not experts in the field," she said, "but agencies are experts in the field." Id. *52 (original emphasis). In response, the Chief Justice wrote that it depends on what the "field" is; while agencies have expertise in administering their statutes, the courts have expertise in interpreting them. Id. *21. And the courts, he said, are fully capable of determining the policy of federal statutes. Id. *17. Still, the Chief Justice acknowledged that courts may defer to agency interpretations of fact as opposed to interpretations of law, because agencies have special expertise in interpreting facts involving their statutory functions. Id. *10.
Justice Kagan also argued that Chevron is supported by stare decisis, and to overturn it would unsettle interests that have relied on decisions reached under Chevron. Id. *49-52. In response, the Chief Justice wrote that Chevron is misguided, has proven unworkable, and is an impediment rather than an aid in interpreting statutes; therefore, the doctrine should not be applied in future cases simply because it has been applied in past ones. Id. *19. He also stated that while the Court, even pre-Chevron, has traditionally given "weight" to federal agency interpretations of statutes, the Court has never allowed agency interpretations to "supersede" the Court's independent judgment. Id. *9. Importantly, the Chief Justice stated that the Court's decision overturning Chevron only overturns the Chevron methodology applied in reaching past decisions, but does not overturn the decisions themselves, and thus the decisions continue to be protected under stare decisis. Id. *21.
Finally, Justice Kagan argued, as the Government principally contended, that Congress intends that agencies should have authority to resolve statutory ambiguities, and thus Chevron is based on Congress' intent. Id. *39-40. The Chief Justice responded that statutory ambiguities generally result from Congress' failure to anticipate and answer the particular question, and thus such ambiguities are not a congressional delegation of authority to agencies. Id. *15.
In sum, Loper Bright held that under the Constitution and the APA the courts and not agencies are responsible for interpreting ambiguous federal statutes, although the courts can defer to agency interpretations of fact, and past court decisions that relied on Chevron continue to have stare decisis effect.
Author's view
In my own experience, I have seen the Chevron issue from both sides. As head of the Solicitor's office of the U.S. Department of Interior, I oversaw federal lawyers whose views were accorded deference under Chevron. And as head of the California Attorney General's division that represents most of California's environmental agencies, I oversaw California lawyers whose views were disadvantaged in litigation against federal agencies, because their opposing attorneys' views were accorded deference and their own views were not. Both groups of attorneys were highly dedicated and talented, and were fully capable of understanding and interpreting the law; after all, they were all reading the same statutes, court decisions, and other matters that make up the law. I never felt that one group of attorneys' views in interpreting the law were more profound and entitled to greater deference than the other group's views, although to be sure their interpretations diverged as their client agencies' interests diverged. The attorney's duty is to present his client's best arguments, and the court's duty is to sort through the arguments and correctly determine the law--but without tilting the scales in favor of either side. The blindfold worn by the Lady of Justice does not have a peephole for federal agencies' interpretation of the law.
Federal agencies often broadly construe their authority under Congress' enactments, in the belief that a broad construction enables them to fulfill their congressionally-authorized missions to achieve certain goals. While the agencies' beliefs may be understandable and the goals may be important, this is an insufficient basis to conclude that Congress intended to delegate such authority to the agencies. Congress, in granting power to agencies, often limits their power because of competing interests, such as the states' traditional authority to regulate matters within their jurisdiction and the rights of property owners to control and use their property. Thus, federal statutes delegating authority to agencies often reflect an amalgam of competing federal, state and private interests. For example, Congress, in enacting the Clean Water Act, 33 U.S.C. § 1251 et seq., delegated broad authority to certain federal agencies to prevent water pollution, e.g., §§ 1342, 1344, but also limited their authority because of the states' traditional right to regulate water and prevent pollution under their own laws. E.g., §§ 1251(g), 1323, 1370. In interpreting statutes where Congress' intent is not clear, the judiciary is better qualified than the agencies to consider these disparate interests and strike the balance that Congress had in mind, and is the appropriate institution to make these judgments.
Under the Constitution's separation of powers and the Administrative Procedures Act, the judiciary is responsible for interpreting the nation's laws and resolving statutory ambiguities. Since Chevron departed from this principle, Loper Bright properly overturned Chevron.