The U.S. Supreme Court building shown here on April 23, 2023. The Chevron deference was established in a 1984 Supreme Court case.

The U.S. Supreme Court building shown here on April 23, 2023. The Chevron deference was established in a 1984 Supreme Court case. DANIEL SLIM/AFP via Getty Images

Federal Agency Expertise Faces a Challenge at the Supreme Court

The Chevron Deference, established in 1984, says courts should defer to federal agencies’ interpretation of an ambiguous or unclear statute that they administer.

The Supreme Court announced Monday that it would hear challenges to a 39-year-old doctrine that says courts should defer to federal agencies’ interpretation of an ambiguous or unclear statute that they administer.

The Chevron deference, established in a 1984 Supreme Court case, is something the court has had an “increasingly chilly orientation to” since 2000, two experts wrote last summer. In this case, New Jersey fishermen are challenging the federal government’s ability to force them to pay monitoring fees, which their legal team says is unlawful without congressional approval. 

At issue is “whether the court should overrule Chevron v. National Resources Defense Council, or at least clarify that statutory silence concerning controversial powers expressly, but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency,” said SCOTUSblog

Ryan Mulvey, counsel at the Cause of Action Institute, a nonprofit working to enhance individual and economic liberty to limit the administrative state and part of petitioners’ legal team, said, “the Supreme Court has an opportunity to correct one of the most consequential judicial errors in a generation.” The doctrine “has proven corrosive to the American system of checks and balances and directly contributed to an unaccountable executive branch, overbearing bureaucracy, and runaway regulation.” 

The Commerce Department, whose top officials are the defendants in the case, did not respond for comment. The Justice Department declined to comment. 

However, in a brief filed in February DOJ officials underscored the use and precedent of Chevron. 

“By centralizing interpretive decisions in agencies supervised by the president, Chevron also promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in ad-ministering complex statutory schemes,” they wrote. 

 “Practically Legally Gratuitous”

“The court's conservatives (as well as those on the lower courts) have already made clear that they feel no constraints from Chevron (or separation of powers for that matter),” James Goodwin, senior policy analyst at the Center for Progressive Reform, tweeted. This includes the “major questions doctrine” established by the Supreme Court last summer, which set a precedent that federal agencies could have little flexibility to create new regulations with major economic or political significance that rely on authorities not clearly laid out in law.

“Overruling Chevron at this point would be practically legally gratuitous,” Goodwin added. 

Scott Nelson, an attorney at the consumer advocacy nonprofit, Public Citizen,, said the high court “has a way of granting cases to decide big questions and then getting cold feet, and they can still decide this case on a less sweeping basis.” 

However, if it were to overturn Chevron, “it would subject agencies to much more judicial second guessing and effectively negate Congress’s decision to leave filling in the details of statutory schemes to expert agencies,” he said. “The trend in the court’s recent decisions of deciding these kinds of cases without mentioning Chevron may have much the same effect, making Chevron increasingly irrelevant without overruling it.” Nelson stressed the need to keep Chevron because it is a “check” on courts to not be swayed by their ideological leanings. 

On the other side, Thomas Berry, research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies, who submitted an amicus brief in support of the petitioners, said Chevron needs to be overturned because it’s unconstitutional. It gives judicial power to the administrative state despite the Constitution giving all judicial power to the Judicial Branch and “it biases the courts towards executive agencies, stripping the judiciary of impartiality and denying litigants due process.”

In a study for the amicus brief he and his colleagues submitted “we found that federal courts of appeal still defer under Chevron regularly, even though the Supreme Court itself rarely defers anymore,” said Berry. “This demonstrates that even if applying Chevron deference may be disfavored at the Supreme Court, the Chevron Doctrine will not fade away completely until the Supreme Court explicitly over-rules it.” 

Republicans have introduced legislation in recent years to rein in Chevron, and although it passed the House in July 2016, they haven’t been successful.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.