Supreme Court appears ready to end deference to federal agency expertise
The conservative majority is skeptical of a longstanding precedent that gives agencies latitude in setting regulations, and legal experts say it will take "miracle" to save it.
The Supreme Court appears poised to strip away at least some of the discretion federal agencies enjoy in interpreting and implementing federal law after hearing challenges to a decades-old doctrine that the judicial branch should defer to the executive when provisions of law are unclear.
The court is examining whether a precedent it set in the 1984 case Chevron v. National Resources Defense Council—which says broadly that courts must defer to agencies when interpreting ambiguous statutory language—should remain. Under the “Chevron deference,” courts have ruled they and Congress do not possess the same expertise as federal agencies and therefore executive branch experts should have latitude in interpreting laws. If the law is ambiguous, courts must defer to agencies so long as their interpretations are reasonable.
The arguments in two similar cases before the court on Wednesday led to significant skepticism of the original wisdom of Chevron from the conservative majority on the court, with justices stating it created confusion and afforded too much power to agency staff. The three liberal members of the bench defended the precedent, saying judges did not possess the expertise to interpret technicalities that run the gamut of the U.S. code.
Chevron has long been considered one of the most significant precedents in administrative law and its reversal, even if only partial, could cause major disruptions in how agencies operate. The Supreme Court has leaned on Chevron deference in more than 70 cases, though in recent years lower courts have done so with much more frequency. The Biden administration has defended Chevron as a “bedrock principle” that promotes predictability, political accountability and respect for "the expertise agencies can bring to bear in administering complex statutory schemes."
The cases the Supreme Court heard on Wednesday were brought by Relentless, Inc. and Loper Bright against the Commerce Department to challenge the federal government’s ability to force fishermen to pay monitoring fees, arguing Congress must directly approve such a fee. Roman Martinez, an attorney for Relentless, said Chevron improperly reallocates interpretive authority from courts to agencies, thereby forcing courts to adopt rules promulgated by agencies for “political or policy reasons” and encouraging “agency overreach.”
“In doing so, Chevron blocks judges from serving as faithful agents of Congress,” Martinez said.
He argued the precedent was in violation of Article Three of the Constitution, as well as the 1946 Administrative Procedures Act. Paul Clement, an attorney for Loper Bright, said the doctrine incentivizes lawmakers to purposely create ambiguous laws and then quietly tell federal employees to interpret them a certain way.
He also noted agencies frequently lose cases before the Supreme Court, which he said indicated federal agency expertise is “not what it’s cracked up to be.” Given the six-seat conservative majority and their sympathetic questioning of those positions, it now appears unlikely Chevron will continue to exist in its current form once the court issues a ruling.
“Barring some miracle, the court will overturn Chevron,” Daniel Rodriguez, a law professor at Northwestern University who specializes in administrative law, said after the oral arguments. He added the back and forth revealed there is “easily a majority ready to repeal Chevron.”
Associate Justice Neil Gorsuch suggested judges should hear evidence and issue a decision based on the best argument.
“Is the judge persuaded at the end of the day with proper deference given to a co-equal branch of government?” Gorsuch asked. “Or does the judge abdicate that responsibility and say, automatically, whatever the agency says wins?”
Gorsuch, Associate Justice Samuel Alito and others said it remains unclear when a law qualifies as ambiguous and therefore deference to agency interpretation must occur. Several justices also noted the current system creates instability, as agency interpretations change with each new administration.
“The reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in,” Associate Justice Brett Kavanaugh said.
Associate Justice Elena Kagan cited several questions that judges are unqualified to answer and for which Congress has failed to provide specificity. Whether a new product is a dietary supplement or a drug should be determined by the Health and Human Services Department, not a lower court judge, she said. Even after courts conduct robust reviews to determine congressional intent, there remains uncertainty about “whether this product is a drug or a dietary supplement.”
“And it's best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations,” Kagan said. “Judges should know what they don't know.”
Martinez countered that there are “going to be hard questions,” but even when no answer is clear, courts can determine which is best.
Associate Justice Ketanji Brown Jackson, who recused herself from the Loper Bright case but participated in Relentless, said Martinez was improperly assuming every statutory interpretation case marked a legal argument. Instead, she said, Chevron was doing the “important work of helping courts stay away from policymaking.”
“I’m worried about judges and courts becoming uber-legislators,” Jackson said.
The Supreme Court has chipped away at Chevron for many years and more recently has dealt significant blows to agencies’ administrative powers. In 2022, the court established a legal theory known as the "major questions doctrine," setting the precedent that agencies have little leeway in creating new regulations with major economic impact or political salience that rely on powers not clearly laid out in statutory text.
Last year, the court appeared open to removing federal agencies’ capacity to enforce and adjudicate certain laws rather than requiring those proceedings to go before a jury. The justices heard oral arguments on the case in November and a decision is expected later this year.
Elizabeth Prelogar, the U.S. solicitor general, said Chevron followed precedent that long predated its formal creation and unwinding it would cause "profound disruption." Litigants would "come out of the woodwork" to upend long-settled decisions that leaned on Chevron, she predicted. Chief Justice John Roberts, however, suggested the disruptions would be minimal, noting the court has not relied on Chevron in recent years and asking if the justices had already “overruled it in practice.”
Rodriguez, the Northwestern professor, said the main question going forward is what structure the court creates to replace Chevron. He suggested that it could take years to answer as various cases come before the court seeking clarification. In the meantime, he said, agencies will continue to issue rules and regulations and wait to see how interventionist lower courts become in striking them down. He also rejected the notion that lawmakers would act with more specificity in a post-Chevron world.
“It’s a fantasy to say overturning Chevron will cause Congress to act differently,” Rodriguez said.
Gorsuch suggested the existing precedent created in 1944 in Skidmore v. Swift and Co.—which found courts should listen to agency expertise but decide whether they deserve deference on a case-by-case basis—would replace Chevron.
Kagan rejected the argument that Skidmore could serve as a “backup” to Chevron.
“Skidmore means, ‘If we think you're right, we'll tell you you're right,’” the justice said. “Skidmore has always been nothing.”
She added agencies have constituencies, fact-finding requirements and obligations to engage in consultations, and answer to a democratically elected president. Going forward, she said, their expertise will be required to weigh in on issues such as artificial intelligence.
“Those are the people Congress wants to decide questions about AI,” Kagan said. “We don't even know what the questions are about AI, let alone the answers to them.”
Martinez emphasized the court should rip off the Band-Aid in reversing Chevron, saying a “mend but not end” approach would lead to an endless stream of new cases with petitioners seeking clarity from the court. The court is expected to issue a decision this summer.