The U. S. Supreme Court struck down the “Chevron doctrine” that has plagued the citizenry of our great country since 1984. In Loper Bright Enterprises et al v. Raimondo, the Court ruled that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority. The courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous. This case was a challenge by New England herring fishermen to a requirement of the National Marine Fisheries Service that fishing vessel owners pay for government-mandated inspectors to monitor their fish harvests.

The reasoning

Citing sources such as the Federalist Papers (No. 78 p. 525; No. 37, p. 276 if you’re interested) and decisions as early as Marbury v. Madison, Chief Justice Roberts concluded that the final interpretation of laws is the province of the courts. Chevron defied the command of the APA that a reviewing court, not the agency whose action is being reviewed, is to decide questions of law. Chevron required a court to ignore the reading it would have reached had it exercised independent judgment as required by the APA. Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. The Court observed that under Chevron’s broad rule of deference, ambiguities of all stripes triggered deference even in cases having little to do with an agency’s subject matter expertise.

What is Chevron deference?

In Chevron USA v. Natural Resources Defense Council, a quorum of six justices established a two-step approach to review of federal agency action. First, discern whether Congress had directly spoken to the question at issue.  If the intent of Congress is clear that’s the end of the matter. If the statute is silent or ambiguous with respect to the issue, a reviewing court could not impose its own construction of the statute as would be necessary in the absence of an administrative interpretation. Instead, the second step would be for a court to defer to the agency if the agency had offered a permissible construction of the statute even if the court would have reached a different result in a judicial proceeding.

A brief history

Since the beginning, the Supreme Court believed it should give “the most respectful consideration” to the executive branch’s interpretation of laws. The views of the executive branch could inform, but not supersede, the judgment of the judiciary. Beginning with the rise of the administrative state during the New Deal era the Court began to treat agency determinations of fact as binding on the courts, provided there was evidence to support the findings. The court did not extend similar deference to agency resolutions of questions of law. The interpretation of the meaning of statutes remained exclusively a judicial function.

In 1946 Congress enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating the offices”.

Then, along came Chevron, which triggered what Justice Roberts referred to as a “marked departure from the traditional judicial approach of independently examining each statute to determine its meaning.” Over time the Court has whittled away the full effect of Chevron, but the lower courts have continued to apply it because it had not been reversed.

It remains that an agency’s interpretation of a statute may be especially informative to the extent it rests on factual premises within the agency’s area of expertise.

Stare Decisis

This doctrine governs judicial adherence to precedent but does not require the court to persist in Chevron if the quality of the precedent’s reasoning, the workability of the rule it established, and the reliance on the decision do not support stare decisis. Those three factors weighed against start decisis in Loper.

Concurring opinions

Justice Thomas noted that Chevron not only curbed the courts’ judicial powers but simultaneously expanded agencies’ executive power beyond constitutional limits.

Justice Gorsuch relied on Article III of the Constitution, which delegates the power to resolve cases and controversies to tenured judges. As for stare decisis, he noted that during the years under Chief Justices Warren and Burger the Court overruled an average of three cases per Term, including roughly 50 statutory precedents. And one could consider how the FDR era Court expanded the Commerce Clause.

The dissent

Justice Kagan saw the decision as yet another example of the Court’s rollback of agency authority, despite Congressional direction to the contrary, and referring to Chevron as “long-standing”. She saw a rule of “judicial humility” give way to “judicial hubris”, citing several cases in which the Court was well-advised to leave technical terms to the agency. She sees agencies as “politically accountable” and Congress as often intentionally leaving gaps and ambiguities in statutes. She took issue with the majority’s reliance on the APA.

What does Loper Bright mean?

The New York Times doesn’t like it which, to regular readers of this blog, means it must be a good result. Decide for yourself. One obvious effect: It diminishes the power of the unelected, often overly zealous federal bureaucracy to, without oversight from any court, micromanage the everyday lives of ordinary citizens and businesses of all sizes. It is a victory for the “forgotten man” the New Deal was envisioned to help and a defeat for the overweening regulatory apparatus that the New Deal spawned.

Lagniappe: Want to meet the real “Forgotten Man”? Read the book of the same name by economist Amity Schlaes. Among other issues, see how rent-seeking big business buddied up to the New Deal regulators to squeeze the little guy.

Willie Mays , RIP

Orlando Cepeda, RIP