On Wednesday, SCOTUS heard oral argument—for over three and a half hours—in two very important cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dept of Commerce, about whether the National Marine Fisheries Service (NMFS) has the authority to require Atlantic herring fishing vessels to pay some of the costs for onboard federal observers who are required to monitor regulatory compliance. And they’re important because… why? Because one of the questions presented to SCOTUS was whether the Court should continue the decades-long deference of courts, under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, to the reasonable interpretations of statutes by agencies. The doctrine of Chevron deference mandates that, if a statute does not directly address the “precise question at issue” or if there is ambiguity in how to interpret the statute, courts must accept an agency’s permissible interpretation of a law unless it is arbitrary or manifestly contrary to the statute. Of course, the conservative members of the Court have long signaled their desire to rein in the dreaded “administrative state,” especially when agencies are advancing regulations that conservative judges perceive as too “nanny state.” And overruling Chevron is one way to do just that. (See, for example, the dissent of Chief Justice John Roberts in City of Arlington v. FCC back in 2013, where he worried that “the danger posed by the growing power of the administrative state cannot be dismissed,” not to mention the concurring opinion of Justice Neil Gorsuch in the 2016 case, Gutierrez-Brizuela v. Lynch, where he referred to Chevron as an “elephant in the room” that permits “executive bureaucracies to swallow huge amounts of core judicial and legislative power.” And then there’s Justice Brett Kavanaugh’s 2016 article, Fixing Statutory Interpretation, in which he argues that Chevron is a “judicially orchestrated shift of power from Congress to the Executive Branch.” See the SideBars below.) But, in recent past cases, SCOTUS has resolved issues without addressing Chevron, looking instead to theories such as the “major questions” doctrine. (See this PubCo post.) The two cases now before the Court, however, may well present that long-sought opportunity. Depending on the outcome, their impact could be felt far beyond the Marine Fisheries Service at many other agencies, including the SEC and the FDA. Will we soon be seeing a dramatically different sort of administrative state? To me, it seemed pretty clear from the oral argument that SCOTUS is likely to jettison or significantly erode Chevron. Among the most conservative justices at least, there didn’t seem to be a lot of interest in half-measures—been there, done that. (The concept of the Court’s limiting its decision to whether statutory silence should be treated as ambiguity, as some had hoped, did not even come up for serious discussion.) But what approach the Court might take—overrule Chevron with no alternative framework suggested, adopt a version of “weak deference” as outlined in a 1944 case, Skidmore v. Swift & Co., or possibly even “Kisorize” (as they termed it) Chevron by imposing some serious limitations, as in Kisor v. Wilkie—that remains to be seen.
Background
Both of these cases relate to interpretations by the NMFS of the Magnuson–Stevens Fishery Conservation and Management Act (MSA), first passed in 1976 to “respond to the threat of overfishing and to promote conservation.” The MSA governs marine fisheries management in U.S. federal waters and assigns responsibility for administration to the Secretary of Commerce, who has delegated administration to the NMFS, which is “charged with promoting the sustainability of the nation’s fisheries.” The MSA establishes regional councils that participate in the creation of fishery management plans, which, under the MSA, may require that observers be carried on board U.S. fishing vessels to collect data for the conservation and management of the fishery. In 2020, the NMFS approved a final rule, proposed by one of the regional councils, that “provided general guidelines for industry-funded monitoring in all of its fishery management plans and specifically provided for the owners of herring vessels to bear the expense of contracting for some of the monitors engaged on their vessels.” Objecting that they may be subject to costs of up to 20% of returns, two groups of commercial fishermen, including Loper Bright and Relentless, challenged the authority of the NMFS to adopt the rule imposing a payment requirement on vessel owners or operators. In both cases, the district courts granted summary judgment to the government, and the plaintiffs appealed. In Loper-Bright, a majority of a three-judge panel in the D.C. Circuit (where Justice Ketanji Brown Jackson previously heard oral argument in this case, leading her to recuse herself) determined that the NMFS’s interpretation of the statute as authorizing additional industry-funded monitoring programs was reasonable and entitled to deference. In Relentless, a three-judge panel of the First Circuit also affirmed, concluding that the rule was “a permissible exercise of the agency’s authority and… otherwise lawful.” On May 1, 2023, SCOTUS granted cert in Loper Bright and, on October 13, granted cert. on the same question in Relentless, Inc. (presumably to allow Justice Jackson to participate in the decision): “[w]hether the Court should overrule Chevron 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.” (For further discussions of the decisions of the two courts of appeal and of the petitions for cert and responses, see this PubCo post and this PubCo post.)
As described by the First Circuit, the well-worn two-step Chevron test for determining whether deference should be accorded to federal administrative agency actions interpreting a statute (as opposed to its own regulation) requires that the court first consider “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter.” Second, “[i]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Briefs
Loper Bright. In its brief, Loper Bright contended that the “extraordinary conclusion” of the lower courts that the NMFS could “leverage statutory silence to require herring fisherman to foot the bill for federal overseers to the tune of 20% of the fishermen’s annual returns…exemplifies all that is wrong with Chevron. The Court should either abandon Chevron for good or at least substantially cabin its scope.” In their view, the statute expressly permitted payments in only three narrow circumstances, but the NMFS “seizing on the statute’s ‘silence’ and purported ‘ambiguity,’” imposed a 20% payment requirement, an “intolerable” result. First, Loper Bright contended, “Chevron is egregiously wrong several times over. As a constitutional matter, Chevron impermissibly transfers both Article III judicial power and Article I legislative power to Article II executive agencies, and it runs afoul of the Due Process Clause by requiring courts to systematically place a thumb on the scale against the citizenry. As a statutory matter, Chevron flouts the plain text of the APA, which makes clear that courts, not agencies, are supposed to interpret statutes—as a majority of the Court has already concluded. And Chevron is entirely ahistorical, as it purported to draw support for deference from a historical record that actually confirms that courts traditionally discharged their responsibility to interpret statutes even in cases involving executive agencies.”
In addition, they argued that “Chevron has also proved unworkable and engendered significant negative consequences. It is no secret that courts have struggled to apply the Chevron methodology in a principled way, and the Court’s manifold efforts to tweak the methodology have only added to the confusion. The best evidence that Chevron is unworkable is the fact that this Court no longer deigns to apply it.” But there are larger, more troubling consequences, they claimed: “Chevron has seriously distorted how the political branches operate,” with Congress doing less and the Executive doing more, tackling “controversial issues via executive action without the need for compromise, bicameralism, or presentment. That creates a dynamic where the ‘law’ on important and divisive issues changes radically with every change of administration, with the latest executive action predictably challenged in a hand-picked jurisdiction with an attendant emergency petition to this Court. Moreover, as baleful as the consequences are for the separation of powers, Chevron’s primary victim is the citizenry, as Chevron literally gives the tie to their regulators in every close case.” If SCOTUS were unwilling to overturn Chevron, at least it “should make clear that the doctrine is not triggered by statutory silence, especially silence concerning a controversial power expressly but narrowly conferred elsewhere in the statute.” The brief also addressed their views on the absence of reliance interests and the limited applicability of stare decisis, given that the Chevron framework is just an “interpretive methodology,” not a substantive holding. They asked the Court to reverse rather than remand the case, so as to end the NMFS’s “overreaching effort to regulate the herring industry into nonexistence.” (Here is the reply brief of Loper Bright.)
Relentless. In its brief, Relentless concurred with all the points made by Loper Bright and added two more: First, they argued, “Chevron violates the Constitution by compromising judges’ independence when interpreting the law. Article III vests the judicial power exclusively in the federal courts. Central to that power is the duty of judges to use their independent judgment when ‘say[ing] what the law is.’” Independence of the judiciary from the political branches is important to ensure that decisions are rendered “impartially, without fear or favor.” But “Chevron defies these principles by telling judges to defer to inferior-but-tenable agency interpretations of ambiguous federal statutes. Acquiescence is mandatory so long as the agency’s interpretation falls within an ill-defined zone of reasonableness—even if the judge believes the agency’s interpretation is wrong. Chevron thereby forces judges to abdicate their most important duty: to faithfully apply the law.”
Second, they argued, Chevron violates the due process clause of the Fifth Amendment. “By requiring courts to resolve ambiguities in favor of the government—our Nation’s most powerful litigant—it introduces systematic bias into the adjudication of cases. Chevron further offends due process by empowering the government to act as a judge in its own case, contravening basic notions of fair play. The government’s substantive defense of Chevron rests on a fictional presumption that Congress deliberately delegated the power to interpret ambiguous statutes. That fiction is just that—a fiction—and it cannot be allowed to distort our constitutional structure.” Further, they asserted, this theory of delegation “holds that agencies can exercise their Chevron-granted ‘interpretive authority’ by imposing their preferred policy outcomes. That conflates legal interpretation with policymaking. But law and policy are different. Determining the meaning of the words enacted by Congress requires legal judgment, focused on a close analysis of text, structure, history, precedent, and traditional tools of construction. It is not an exercise in policymaking. Article III judges are free to respectfully consider the views of federal agencies, but they may not defer, even in hard cases.” Stare decisis should not apply because, while its purpose is to “foster consistency and stability in the development of law,” Chevron is “a singularly destabilizing influence.” Finally, they maintained, Chevron has “hindered the orderly development of law, and attempts to reform it have proven complicated and unworkable. Worst of all, Chevron deeply undermines the proper functioning of our constitutional framework of separated powers. Chevron is egregiously wrong and should be overruled. Whatever this Court does with Chevron, it should invalidate the Final Rule.” (Here is the reply of Relentless.)
Raimondo and Dept. of Commerce (Loper Bright and Relentless). In its brief on behalf of the Secretary of Commerce, Gina Raimondo, the Government argued that, for a number of reasons, Chevron should not be overruled. The Government’s brief on behalf of the Dept of Commerce is largely the same as its brief submitted in Loper Bright.
First, the Government asserted that “Chevron is a bedrock principle of administrative law that provides an appropriately tailored framework for judicial review of an agency’s interpretation of a statute it administers.” Moreover, the Government contended, rejecting Chevron would be destabilizing: “[f]ar more than Auer, overruling Chevron would be a convulsive shock to the legal system. All three Branches of government, regulated parties, and the public have arranged their affairs for decades with Chevron as the backdrop against which Congress legislates, agencies issue rules and orders, and courts resolve disputes about those agency actions. Given its central importance, overruling Chevron would threaten substantial disruption in federal programs such as Social Security and would upset settled expectations in virtually every area of federal law. And if Chevron were overruled, the federal courts would inevitably be required to resolve policy questions properly left to the “political branch[es].” The Government explained that, “[u]nder Chevron, Congress is generally presumed to have allocated interpretive authority to the agency to resolve a statutory ambiguity or fill a gap, within reasonable bounds.” But deference under Chevron does not apply until a reviewing court, after “exhaust[ing] the traditional tools of statutory construction,” has determined that “Congress has not itself clearly answered an interpretive question.” In that event, it makes sense “to presume that Congress intended its vesting of authority in the agency—and the agency’s reasonable exercise of that authority—to be given effect by the courts.” Importantly, the Government contended, “Chevron gives appropriate weight to the expertise, often of a scientific or technical nature, that federal agencies can bring to bear in interpreting federal statutes.” In addition, it argued that Chevron “promotes national uniformity in the administration of federal law and greater political accountability for regulatory policy. When a statutory provision is genuinely susceptible of multiple reasonable readings, choosing among those readings often turns on a policy judgment that Congress has vested in the agency and that is properly left to the political Branches.” What’s more, U.S. courts have never “applied an invariable rule of de novo resolution of all questions of law”; Chevron is consistent with “a long tradition of judicial deference to reasonable Executive interpretations.”
Second, the Government maintained that stare decisis should apply: Chevron “has been a cornerstone of administrative law reflected in thousands of judicial decisions—and …has provided a stable background rule against which Congress has legislated—for 40 years.” Congress has the power to change or eliminate Chevron, but has not done so. As a result, the Government contended, “Chevron is entitled to the particularly strong form of stare decisis that this Court affords to decisions that Congress could override by legislation. Petitioners’ contrary theories for giving Chevron little or no precedential weight lack merit and directly contradict the Court’s decision in Kisor v. Wilkie.” The Government also asserted that Chevron is “workable” and that overruling it “would upset the reliance interests of regulated parties and the public in the many agency rules and orders that have been upheld under Chevron. Petitioners contend that different judges have different thresholds for finding ambiguity. But reasonable jurists may disagree under any interpretive framework, and replacing Chevron with a regime of de novo review would draw federal courts into resolving policy questions and exacerbate the potential for inconsistent results.”
Third, the Government contended that Chevron is consistent with “separation of powers and due-process principles.” In upholding an agency’s interpretation of a statute, “the court is exercising the judicial power while also respecting Congress’s Article I decision to vest authority in the agency to resolve an ambiguity or fill a gap within reasonable bounds. Chevron is also consistent with [Section 706 of the APA], which states that courts shall resolve questions of law but does not specify the standard of review they should use. And petitioners’ policy arguments against Chevron are unsound and, in any event, are properly addressed to Congress.”
Finally, the Government advised that the Court not follow petitioners’ alternative to preclude the application of Chevron when a statute is “purportedly ‘silent’ as opposed to merely ambiguous. Petitioners offer no workable line for distinguishing between silence and ambiguity, as this case illustrates”: The MSA, the Government asserted, is not silent, but rather confirms the NMFS’s authority to “require owners of regulated vessels to retain and pay for third-party monitoring services…. And there is nothing controversial about requiring regulated parties to bear the costs of retaining the services of third parties—like lawyers or accountants—to comply with federal law.” The Government contended that Chevron should be upheld, but if “the Court revisits Chevron, it should remand for the court of appeals to apply whatever new approach the Court adopts.”
Oral argument
Below are some of the highlights of the oral argument, based largely on my notes, so standard caveats apply.
Petitioners contended that, in interpreting statutes, the question should be “what is the best reading of the statute?” Full stop. Interpreting a statute is a legal question for the courts, they said, not a policy question for agencies. Petitioners contended first, that Chevron violates the Constitution by inappropriately transferring power from the judicial and legislative branches to the executive branch. Under Chevron, a court may be forced to defer to an agency even if the court believes that the agency interpretation is inferior to its own view. There was no reason to give the “tie” or gap to the Government. Second, they contended that Chevron violates the APA, which requires the courts to conduct de novo reviews of legal questions. Asking whether the statute is ambiguous is just misguided. Third, they argued that the theory that Congress has, in the event of silence or ambiguity, implicitly delegated the interpretive authority to agencies, a theory that underpins Chevron, is a complete fiction. Ambiguity does not always mean a delegation.
The Solicitor General contended that Chevron was bedrock, that de novo review of all statutes is not consistent with precedent, and that Chevron does not present due process issues. In addition, the Solicitor General maintained that the reliance interests would be substantial and that thousands of decisions would be challenged if the case were overruled. She also contended that Chevron does not rest on a fiction, that there are good reasons to delegate because of the need for technical expertise that has been accumulated in an agency. In addition, Chevron is well known foundational precedent and Congress has not chosen to reverse it.
The separation of powers question—are these strictly legal questions or do they involve questions for policy expertise? The Justices had three and a half hours’ worth of questions and challenges. The divisions between the more liberal and more conservative justices were clear. Perhaps the biggest question, which came in a variety of forms, was whether these interpretive issues were strictly legal questions or necessarily involved questions of policy. Justice Jackson questioned the assumption by petitioners that all of the questions of statutory interpretation that arise are legal questions. One concern is that the courts will transform policy questions into legal questions. In her view, Chevron helps the courts stay out of policy questions, which Congress has given to agencies. The job of the courts in that case is to monitor the boundaries. Justice Elena Kagan offered several examples where the statutes involved technical issues, asking whether a court was better positioned to make a determination. For example, is a new substance designed to promote healthy cholesterol a dietary supplement or a drug? In her view, the courts should bring to bear all of their judicial tools to try to interpret the statute, but sometimes there’s a gap—the “law has run out.” In the example given, the court may not be able to tell whether the product is a drug or supplement. In that case, you want the interpretation of HHS—best to defer, if it’s reasonable, to those who have expertise. Similarly, if Congress were to introduce a bill on AI, they would not be able to foresee every issue that may arise. Does the court decide these policy-laden questions? (Should the courts or the FDA make decisions about approval of mifepristone? Stay tuned for that one.) When Congressional direction cannot be found, who does Congress want to determine the question? These are policy-laden judgments. The courts, she said, are not competent to decide these issues. Agencies have the expertise, are accountable through the political process, need to consult through the comment process and report to the President and other entities. Similarly, Justice Sonia Sotomayor asked why not, if there’s ambiguity and several possible interpretations, defer to the agency with expertise? Historically, the courts have long recognized delegations to agencies.
Petitioners’ counsel asked how the court would interpret the statute without an agency to begin with. In the example given, a court would simply decide whether the product was a drug or supplement. That same concept should apply—regular judicial interpretation arrived at in the normal way. Chevron provides a curious result where the question is first a legal question to which the court applies all the tools of construction, but then, at step two, it’s suddenly a policy issue and the court defers. In petitioners’ view, the question of whether the fishing vessels pay for monitors is an entirely legal question. The court can’t just say that it’s too hard and that the law has run out. Justice Alito agreed that, if no agency is involved, the tools are never exhausted; there is no step two. In essence, why the difference? In the same vein, Justice Kavanaugh noted an inconsistency under fn 9, which requires the court to use all the tools of construction. If you use all the tools, he said, you’ll get an answer and won’t get to step two, as described in fn.11. That’s what happens when no agency is involved. Chevron transforms law into policy, but the executive and judiciary may not treat laws passed by Congress as policy that they can change. The Solicitor General said that there’s a third alternative where the issue cannot be resolved. Then if Congress has required the agency to administer the statute, Congress expects that the agency will fill the gap, within the bounds of reasonableness.
Justice Kavanaugh observed that there are lots of statutes that involve legal questions and lots that explicitly confer broad policy discretion on agencies—what is a “reasonable” number of fish that can be caught in a day?—that’s where deference kicks in. Justice Amy Coney Barrett agreed that when a statute used words that were more capacious, such as “reasonable” or “appropriate,” that would seem to reflect a delegation of authority.
Who would win at step one? Both sides contended that they should win at step one. One of petitioners’ counsel argued that the statute was actually pretty clear and that there was no intent in the statute to allow a 20% charge—i.e., as the Chief Justice observed, he was arguing that the statute was not even ambiguous. But that did not address Chevron, the Chief Justice said. Step one would give you the answer. In the context of the entire statute, counsel argued, the Court should just go ahead and decide the statutory issue. The Solicitor General also thought that the statute was not silent on the issues but included several provisions that supported the agency’s interpretation, such as the penalty provision.
What is “ambiguity”? Petitioner’s counsel had said that Chevron was unworkable in part because there is so much disagreement about the issue of ambiguity—you really need a secret decoder ring to figure it out. Asked by Justice Kavanaugh how she would define “ambiguity,” the Solicitor General referred to Kisor, where the Court said that a statute was ambiguous when all the tools of interpretation were exhausted but the court hadn’t found a single right answer. It’s not a precise mathematical calculation but requires judgment. But courts are not required to ignore their decisions that they’ve reached at step one. Justice Gorsuch commented that the courts have reached multiple conclusions about whether there is an ambiguity, to the point where the lower courts have been begging for relief. Justice Gorsuch also complained that under Chevron, where there is ambiguity, the Government always wins. In his experience in the lower courts, that result was always to the detriment of the little guy. The alternative is for the courts to listen to both sides and decide. In the absence of Chevron, everyone can get their day in court. The Solicitor General suggested that the Court add a course correction as in Kisor, but Justice Gorsuch basically said that they have tried various tweaks to no avail. She cautioned the Court to consider the consequences if the case were overruled—the inconsistences and problems at the lower courts would remain.
Should Skidmore deference be the alternative? Both petitioners and a number of Justices, particularly Justices Kavanaugh and Gorsuch, seemed to prefer the concept of “Skidmore deference”—sometimes referred to as “weak deference,” which they argued was not really deference at all, but rather a position of respect, where the court gives serious consideration to agency views, but must still be persuaded. Skidmore deference would give weight to agency evidence depending on the circumstances, but the decision is still the court’s. Justice Kavanaugh, describing his view of Skidmore, said that it considers contemporaneous and consistent interpretations to reflect the original meaning of the statute, but when there’s a change in the agency position, that won’t get the same respect. In response to the Chief Justice’s question about his understanding of Skidmore, petitioners’ counsel agreed that it was not a deference position and remarked that the beauty of Skidmore was that it allowed the court to consider the timing of the agency’s views to see whether they shed light on the meaning of the statute. But flip-flopping is big minus under Skidmore. Justice Kagan observed that Skidmore meant “nothing”—if we think you’re right, we’ll tell you you’re right. It can’t be a backup to Chevron.
Does Chevron lead to flip-flopping? Petitioners also raised the issue that, under Chevron, the interpretations keep flip-flopping as administrations change. As a result, in their view, Chevron is reliance-destroying. Justice Gorsuch called it a recipe for anti-reliance. Justice Kavanaugh observed that, while the Government argues that overruling Chevron would be a shock to the system, in reality, Chevron provides a shock with every new administration. It’s not stability, it’s a massive change, a war on reliance. If the new administration can’t get their policy views through Congress, they use Chevron and implement their policy through agencies unilaterally, he said. That view was echoed by one of petitioners’ counsels, who actually blamed Chevron for the gridlock and major social problems that aren’t being addressed in Congress. Justice Jackson said that the change reflects the democratic structure. The Solicitor General contended that changing interpretations imposes additional burdens on the agency to justify its decision, such as considering reliance interests and going through notice and comment. But the fact that the agency has discretion to make changes in response to changing circumstances is really a feature, not a bug.
Why Chevron? Justice Alito pointed out that the reason Chevron emerged was a concern that judges were allowing policy views to influence their decisions. More recently, counsel added, courts rely more on textual interpretation and less on legislative history, the implication being that Chevron is no longer necessary. Justice Kavanaugh also raised the concern that Chevron could create unchecked executive power. Abdication of responsibility to the executive is a big concern. But the Solicitor General responded that Congress creates the discretion and can rein in an agency or even change the rules on Chevron, which it has attempted several times. She agreed with Justice Kavanaugh that the courts police the boundaries of authority of the executive, and thinks Chevron is consistent with that premise.
Is Chevron still alive? The Chief Justice observed that Chevron rarely comes up as an issue before the Court. Has SCOTUS effectively overruled Chevron in practice and just left it to the lower courts? (Is the implication here that there are no reliance interests as a result?) The Solicitor General said that it’s been eight years since the Court applied step two, and step one holdings are consistent with Chevron. Petitioners counsel contended that surveys of many cases have shown that step two was reached in in 70% the cases, and more recently, it was 60%. But some courts never reach step two, and those differences create a disconnect that the Court can’t really resolve.
Should weak stare decisis apply? There was significant attention to the question of stare decisis and the potential consequences if Chevron were overturned. Petitioners’ counsel said that all of the factors were in place to overturn the case: the doctrine is just a methodology deserving weak stare decisis, is unworkable and is “anti-reliance.” Petitioners’ counsel argued that, since it’s just a court-made rule of interpretation, the Court could apply some of the same factors, but with lesser weight than if it were a substantive decision. The problems are evidenced by the Court’s docket, which lists one major rule after another—not one major statute after another. Expertise is not all it’s cracked up to be. The Solicitor General contended that Chevron is not a methodology or an internal management tool but provides a binding framework. In a similar situation, she noted, Kisor, applied a strong form of stare decisis to Auer deference, requiring a special justification. Justice Sotomayor also questioned petitioners’ argument that Chevron deserves only weak stare decisis. Justice Kagan argued that Congress could reverse Chevron, but instead it has relied on it as a stable default rule for 40 years. She observed that Skidmore is not a doctrine of humility, but Chevron is, as is stare decisis. It means that the Court doesn’t reverse things that easily. With 70 SCOTUS decision relying on Chevron, and thousands of lower court decisions, if we blow up these doctrines of humility, how will anyone think the courts are acting like courts? Justice Gorsuch responded that one rule of humility is to admit when you’re wrong.
What would be the consequences of overruling? n terms of consequences of overruling the case, Justice Jackson feared that courts would become “uber-legislators.” If Chevron were overturned, she asked, won’t there be chaos, with different courts taking different positions. What does the agency do in interim? The Solicitor General contended that there would be endless litigation. While petitioners might suggest that stare decisis would apply to those old cases, that was not clear and, she thought, litigants would come “out of the woodwork” to challenge cases. Petitioners’ counsel contended that, in the past, the Court has moved away from certain methods of interpretation, but not all of those prior decisions have been challenged. The Court just needs to say that those decisions were lawful. The Solicitor General also contended that many companies and people have relied on agency interpretations and would be thrown into disarray if the interpretations could be challenged. In addition, she said, there are 800 district courts, and they all could reach different interpretations. The ambiguities will still exist, but there will be lot of inconsistency in how judges approach them. These decisions could affect programs like Medicare and Medicaid. Chevron allows for more uniformity. Agreeing with Justice Alito, Justice Kagan noted that one of the reasons for Chevron was the potential for ideological differences to influence all of these courts—Chevron dampens that.
Is Chevron inconsistent with the APA? With regard to the APA, Justice Clarence Thomas raised the question of the absence of any discussion in Chevron of Section 706 of the APA. The Solicitor General said that the APA does not apply a universal standard of review and that, as the courts go through the framework, they are interpreting the statute. Justice Sotomayor noted that Congress did not use “de novo” in Section 706. The Solicitor General argued that the APA was a restatement of existing judicial practice when it came to review of agency statutory interpretations, and historically, that review sometimes involved deference. Chevron did not address the APA because there was no tension with Section 706.
Should the Court “Kisorize” Chevron? In the end, the Solicitor General argued that, if as petitioners acknowledge, Congress can make an express delegation, there’s no Constitutional difference between that express delegation and the implicit Chevron delegations. As a result, there is no Constitutional dimension here. In that case, the question is whether the court properly identified a delegation. What’s left over are practical considerations, which could be manageable in the same way as in Kisor by clarifying the limitations. That, she said, perhaps sensing the direction of the Court, is what the Court should do. To “Kisorize” Chevron, she suggested that the Court put renewed emphasis on the rigor of the step one analysis, that is, don’t be too quick to find ambiguity. Second, at step two, the Court could emphasize that “reasonableness” doesn’t mean anything goes and ensure that the statute hasn’t been transgressed. Third, the Court could clarify that the process is applicable only if Congress has given the agency power to speak with the force of law and the agency is implementing the statute with a formal level of authority. And fourth, Court could reinforce the need to verify that there is no other statutory indication that Chevron was inapplicable, such as the major questions doctrine.
