Was I wrong about "Chevron Doctrine"?
(Artwork by Microsoft CoPilot)
A few months ago, my mom and I got into an argument about the Supreme Court’s recent decision in Loper Bright v. Raimondo. While I take a lot of pride in reading different points of view and in thinking for myself, it is the case that I respect many writers who were delighted by how the decision did away with “Chevron deference.” But as I talked with my mom, I found myself unable to explain why the judicial framework, articulated by Justice Antonin Scalia nearly 40 years ago, was a mistake and why the recent decision in Loper was the correct one. Meanwhile, my mom, a lawyer who enjoyed her course on administrative law, made many good points.
Unable to articulate a cogent defense of the majority opinion in Loper Bright v. Raimondo, I decided to dig deeper and do my homework. Was Loper Bright a judicial power grab that defenestrated federal agencies? Or was it a decision that strengthened American democracy? Was Justice Elena Kagan correct in her dissent that “judicial humility has given way to judicial hubris”? Or is overturning Chevron an act that returns power to where it belongs? (After all, the great Chief Justice John Marshall declared in Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.”) Before trying to answer these questions, it is important to briefly discuss what “Chevron deference” was and how it came about. The place to start is with the Administrative Procedures Act (APA), which Congress passed in 1946.
Following the passage of the New Deal, federal agencies had grown dramatically and Congress was concerned that agencies were operating with too much discretion and insufficient oversight. As Chief Justice John Roberts writes in Loper, Congress enacted the APA as a “check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” The APA specified that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action. In other words, the APA mandated that judges were supposed to judge. But then along comes Justice Scalia in 1984 and his majority opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a case that involved the Clean Air Act.
Originally passed in 1963, the Clean Air Act required some polluters to obtain a permit before building a new “stationary source” of pollution. Under the Reagan administration, however, the Environmental Protection Agency adopted a different method of interpreting of the law, and environmentalists challenged it in court. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court tackled this key question: when there is a question about an agency interpretation of a law, who gets to decide? Is it the judicial branch or the administrative branch? In a 6-0 decision, Scalia articulated a “two-step approach” that favored the administrative branch.
As a first step, if congressional intent is “clear,” that is the end of the inquiry. But if the court determines that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court must, in the second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.” Overturning “Chevron deference” meant doing away with this second step and demanding that courts exercise independent judgement on all matters of interpretation no matter how technical and specific the question.
In analyzing whether it was or was not a good decision to do away with this second step, I’ll start with arguments from Justice Elena Kagan. In her dissent in Loper, Kagan writes that Congress will pass laws that purposefully contain ambiguities, believing that regulatory experts are in a better position than legislators to clarify highly technical questions. Therefore, regulatory experts are the ones who should judge highly technical questions and judges should stay out of the way. In her dissent, Kagan offers a few examples of what a typical Chevron question looks like because, in her words, “abstract analysis can only go so far.”
For instance, Kagan points us to the Endangered Species Act. In 1973, Congress asked the Fish and Wildlife Service to designate endangered “vertebrate fish or wildlife” species, including “distinct population segment[s]” of those species. She asks, “What makes one population segment distinct from another? Are the Washington State population of western gray squirrels distinct because they are geographically separated from other western gray squirrels? Or can the Fish and Wildlife Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest?” Kagan also points to the authorization of the Medicare program, in which Congress asked that the reimbursements to hospitals are adjusted to reflect differences in hospital wage levels across geographic area[s]. She asks, “How should the Department of Health and Human Services measure a geographic area? By city? By county? By metropolitan area?”
Kagan writes, “Of course courts often construe legal texts, hopefully well. And Chevron’s first step takes full advantage of that talent. The deference to agency expertise comes in only if the court’s standard legal tools don’t work. Answering some technical questions right does not mainly demand the interpretive skills courts possess. Instead, it demands subject-matter expertise [….] Congress knows that it can’t write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities. Agencies have expertise in those areas; while courts do not.” Finally, Kagan argues that “agencies report to a President, who in turn answers to the public for his policy calls.” By contrast, courts have “no such accountability and no proper basis for making policy.”
On the one hand, I get where my mom is coming from. With “Chevron deference” tossed overboard, the Supreme Court will be analyzing highly technical questions, in the words of the New York Times’s Kate Shaw, “not with with decades of technical experience administering particular laws but with a wooden, formalistic and contextual approach to reading statutory text — informed by dictionaries, the common law and Latin phrases.” Moreover, Congress seems incapable of doing anything these days. So why should we believe that Congress can get its act together to write authorizing statutes with even more specific rules on complicated questions?
On the other hand, I find it interesting that many of the same people (like my mom) who are aghast at the overturning of “Chevron deference” are the same people who fear a second Trump term and the changes he would pursue. We need to remember that overturning “Chevron doctrine” limits the power of presidents.
I also wonder if doing away with “Chevron deference” may press Congress to make its law-writing more definitive. One of my favorite thinkers is Yuval Levin. He argues that by pushing all the individuals involved to do the particular jobs assigned to them by the Constitution (in this case, it is the court’s job to judge), the Supreme Court in Loper is “charting a path toward a more legislatively centered political order.”
From Levin to George F. Will, I’ve read lots of people who argue that “Chevron deference” is responsible for Congress’ retreat from relevance. Indeed, this is what I was trying to explain to my mom. But it’s also possible that Levin, Will, and others overstate the case and that “Chevron deference” is a minor player in this story of legislative incompetence. Perhaps, agency reliance on Chevron is a symptom more than a cause. As Thomas Harvey and Thomas Koenig write, “Political polarization and gerrymandered districts have reduced the competitiveness of general elections, thereby focusing members’ energies on their primaries. The real problem driving congressional gridlock is that surviving those primaries disincentivizes compromising with the other side, even though such compromise is necessary to pass legislation. The surest way to get reelected as a legislator is to avoid the risk of legislating. It’s better to stay pure and ward off a potential primary challenger than to strike a compromise and do something meaningful.” With a broken Congress unable to pass legislation, agencies are trying to leverage old statutes to solve new problems. For example, the Clean Air Act was originally designed to deal with air pollutants like sulfur dioxide and lead. But the EPA is now relying on old statutory language to regulate carbon dioxide and mitigate the problems of climate change.
I’ll end where we began: Loper Bright Enterprises v. Raimondo.
What was this case about?
In 2020, the National Marine Fisheries Service updated a regulation to prevent overfishing. Although commercial boats had long been required to have federal inspectors on board, the government decreed that companies would have to pay for the monitors themselves. And how much?
About $700 per day!
A New Jersey fishing company, Loper Bright Enterprises, sued, arguing that Congress never intended any such thing when it passed the Magnuson–Stevens Fishery Conservation and Management Act in 1976. (A provision in the law gave power to the National Marine Fisheries Service so they could require fishing vessels to "carry" federal monitors on board.)
To me, it’s a no-brainer that elected officials should be the ones who are enacting a $700 penalty like this. But it isn’t just the principle of the importance of having a legislative ordered political process. Philip Hamburger, an expert in administrative law who teaches at Columbia Law school, argues that the Bill of Rights guarantee impartial judges who are free of bias towards either party and yet “Chevron doctrine” required judges to favor the legal position held by the most powerful of parties—the government. In our most recent example, the Commerce Department (a huge and powerful entity) automatically gets an upper hand over the much weaker litigant (Loper Bright Enterprises). As for the argument that Congress will grow into its role of actually legislating now that Chevron is eliminated, count me skeptical. But it is legitimate to consider it possible.