One of the most closely watched decisions of the recently concluded Supreme Court term was Loper Bright Enterprises v. Raimondo, in which the Court jettisoned the longstanding doctrine known as “Chevron deference.”
That principle held that when a statute is ambiguous, courts must uphold the relevant federal agency’s reasonable interpretation.
In a 6-3 vote, the Court overruled Chevron, concluding it violates the Administrative Procedure Act (APA) and that interpretation should be left to the courts.
Professor Christopher Walker and Assistant Professor Daniel Deacon answered five questions :
1. The majority opinion called Chevron deference “fundamentally misguided.” Do you agree?
Deacon: I don’t agree with the Court. I think Chevron is actually pretty intuitive. Basically, the idea was that when a statute’s language is unclear, there should be deference to the views of the more expert institution and the more accountable institution.
Walker: The part where I think the Court is onto something, though, is that Chevron assumes that if an agency makes poor decisions, Congress or the president will act to represent the people. But if you don’t have a functioning Congress—if Congress isn’t revisiting statutory interpretations by agencies—you end up in a world where most lawmaking is happening in federal agencies, with the president pushing through a policy agenda using old statutes to do new things that probably weren’t at all the original design. I think that’s what ultimately pushed things over the top and got the Court to say, let’s get rid of this now.
Deacon: I think that’s right as a reason why the Court became disillusioned with Chevron over time. But I do think that congressional dysfunction could cut in different directions. You might also say that if Congress is dysfunctional and that it can’t seem to pass statutes addressing the problems of the day, the reality is that agencies need to be granted some flexibility to use old ambiguous statutory language to address new issues, like climate change or COVID.
Walker: The other factor is the instability of agencies. Every time there’s a new president, agencies may potentially redo everything and start over again—although the number of cases where the agency actually flip-flops is limited. Chevron allowed for flip-flopping, but the assumption was that it would happen against a proactive Congress, and that just hasn’t happened in the last 15 years. You don’t have a Congress that checks that regulatory flip-flopping.
2. Chris, you filed an amicus brief that defended Chevron on stare decisis grounds. Why didn’t that carry more weight?
Walker: When you have a statutory precedent that Congress could change, I think that there’s extra weight in stare decisis. That was our main argument: Congress could change Chevron deference at any time. Chief Justice Roberts had joined our vision of stare decisis in a case called Kisor v. Wilkie. Yet in his majority opinion in Loper Bright, he doesn’t try to explain how his views have changed.
Deacon: I’m not sure how to reconcile the chief’s opinion in Kisor with the chief’s opinion here. The Court’s response to the stare decisis point gets back to something that Chris said in his prior response: Stare decisis is about protecting a stable system of laws. Here, the Court said Chevron doesn’t do that because it allows all this flip-flopping. Getting rid of Chevron might buy greater stability in the system by substituting a new set of doctrines that don’t allow agencies this flexibility to change.
Walker: The chief justice’s opinion on this was brilliant. The conventional view of Chevron is that eventually the Supreme Court views it as part of the Administrative Procedure Act. Chief Justice Roberts tells a less conventional story and says no, the APA is clear: “The reviewing court shall decide all relevant questions of law.” We made up this Chevron doctrine based on what we thought the common law was, and now we’re trying to reconcile this doctrine that seems inconsistent with the APA. So now we’re going to get rid of it. I don’t agree with its conclusion, but the opinion is artfully done.
3. Dan, you wrote in a blog post that the 1944 Skidmore v. Swift & Co. decision seems to be elevated now. Could you explain what that is and where it leaves us?
Deacon: Two years prior to the enactment of the APA, Skidmore said that courts should give respectful consideration to the views of agencies. And Skidmore has, over time, become associated with a number of factors—like the consistency of an agency’s views, whether the agency’s view was expressed close in time to the enactment of the statute, et cetera—that increase or decrease the level of respect that the court might give the agency’s views.
In Loper Bright, it’s not completely clear what the Supreme Court substituted for Chevron. So it said basically that in the post-Chevron world, courts should exercise their independent judgment when it comes to the meaning of statutes. However, the majority seems to cite Skidmore approvingly.
So it does seem like in the post-Chevron world, there is at least part of Skidmore that still counsels at least respectful consideration of the agency’s views, according to at least some of the Skidmore factors. But it’s a little bit unclear how much survives, how courts will use those factors, et cetera.
Walker: According to the opinion, when a lower court is looking at a statute of interpretation that involves an agency, now it’s not asking any more whether the statute is ambiguous. It’s now asking what the statute means. A lot of times the court is just going to say it means the agency can or can’t do what they’re doing.
Sometimes Congress actually delegates policy making authority to the agency. There are three ways the Court says that could happen. One, the statute could expressly delegate that authority to the agency. Two, if the statute uses open-ended terms like “reasonable” or “appropriate,” that signals that the agency should exercise their policy judgment, and I think that’s where Skidmore might come in. And three, in some cases, the reviewing court looks at a statute and says, we think the best interpretation of the statute is that Congress wanted the agency to fill in the details.
Chief Justice Roberts very consciously did not use the words “Skidmore deference.” I think we really have to see how the lower courts flesh out this new Skidmore respect that’s coming from the opinion.
Deacon: I do think that Skidmore could still be relevant even when it comes to normal interpretive questions, not involving words like “appropriate” or “reasonable.”
The court seems to want to say that at least some of the Skidmore factors do go toward statutory meaning. So if there’s a term of art or something that maybe the agency’s in a particular position to have understood how it was meant to be received by Congress, I think that the court could still say we consider the views of the agency in determining the meaning of the statute in question.
4. What do you expect to be some of the outcomes?
Deacon: On average there will be less allowance for the flip-flopping that we’ve seen between different interpretations. Now courts will always be giving their best interpretation of the statute in question and agencies will be bound to follow that best interpretation. Also, it seems like the Court is saying that even without a prior judicial opinion, if an agency has changed its views, the new interpretation should be greeted with some amount of skepticism.
Chris’ work has shown or suggested that Chevron had an impact in terms of agencies’ win rates in court. So I think there will be an impact in the aggregate on agency win rates. But in each individual case, statutory interpretation is more like an art than a science. There may be room to agree or disagree with an agency in any given case. That was true under Chevron, and it’ll be true under Loper Bright and Skidmore.
Walker: And my study is old now. If you look at the last decade, I’d expect that you’ll see the win rates go down a lot because the courts have become more anti-administrative.
One thing I focused on in my writing is that in our dataset, one of the real benefits of Chevron is that it separated judges from their policy preferences. Despite their own beliefs, they had to defer to the agency. So one of my biggest questions after Loper Bright is whether judges will exercise judicial humility and try to separate out their role in interpreting statutes from their own politics.
This ruling is going to change how we teach administrative law. Basically, Chevron is a huge chunk of an administrative law course and casebook with all the different questions that have arisen about Chevron over the years. My casebook authors and I are going to cut half a chapter out, and we’re going to tell the story of the rise and demise of Chevron. It will be a very different way of structuring the course.
5. Where else do we still need more clarity?
Walker: How is Congress going to respond? A lot of the public commentary on the case from those that were against Chevron was that overturning it would get Congress to start legislating again. I don’t think that’s true, but I do think that when Congress does legislate now, it’s going to do so differently. It’s going to think about those factors we talked about—more expressly delegate to the agency, use open-ended terms, and be a little bit more deliberate.
Deacon: Yes, if Congress wishes to preserve agency discretion, they could use words like “appropriate” or “reasonable.” But the Court might crack down on that in a separate line of cases having to do with the nondelegation doctrine, where the Court might say they’re not allowed to use language like that. Or they might narrow it under the major questions doctrine, which can operate to narrow agency discretion even when a statute uses open-ended terms.
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