Chevron Under Siege: The Future of Chevron Deference in Congress and the Courts, 0519 SCBJ, SC Lawyer, May 2019, #26

AuthorThomas M. Cull
PositionVol. 30 Issue 6 Pg. 26

Chevron Under Siege: The Future of Chevron Deference in Congress and the Courts

Vol. 30 Issue 6 Pg. 26

South Carolina BAR Journal

May, 2019

Thomas M. Cull

The Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. is nothing short of an icon in administrative law.1 In Chevron, the Supreme Court established a fundamental precept of administrative law: that federal agencies are entitled to deference from the federal courts when those agencies interpret statutes that they implement, unless Congress has clearly already spoken to the interpretive issue. Since the Court handed down the decision in 1984, Chevron has become the most cited administrative law decision of all time.2 To date, the decision has been cited more than 86,000 times, including in nearly 16,000 subsequent judicial decisions, 47,000 court filings, and 20,000 law review articles and secondary sources.3 But, as of late, Chevron has come under attack. Supreme Court justices have questioned the constitutionality of the doctrine, Congress has drafted legislation to abrogate Chevron, and prominent legal scholars have joined in the growing chorus to reconsider this pillar of administrative law.

Deference to federal agency interpretations is not a new phenomenon. For more than a century, federal courts have given deference to an agency’s interpretation of the statutes it is entrusted with enforcing.4 Prior to 1984, an agency’s interpretation of its statutes not an inexorable command from the High Court but, rather, useful guidance. Courts ultimately maintained the last word.5

Chevron changed everything. In its landmark 1984 decision, the United States Supreme Court transferred considerable power to federal agencies. The Chevron Court held that, when a court reviews a federal agency’s interpretation of a statute administered by the agency, the court must follow a two-step process (often referred to colloquially as the “Chevron Two-Step).6 First, “Chevron Step One” requires courts to determine whether Congress has directly addressed the precise question at issue.7 If so, the analysis ends and the Court must “give effect to the unambiguously expressed intent of Congress.”8 However, if the governing statute is ambiguous or silent as to the specific question at issue, courts must consider “Chevron Step Two” and determine whether the agency’s interpretation is reasonable and permissible within the boundary of the statutory authority9 If a statutory provision is ambiguous and if a federal agency’s interpretation is a permissible (i.e., reasonable) interpretation of the statute, then it is to be given “controlling weight,” even if it is not the best interpretation.10

The Chevron doctrine views statutory ambiguity as an implicit delegation to the agency of the power to “elucidate” the statute.11 That is, the doctrine presumes that, if a statute is silent, Congress has explicitly or implicitly “left a gap for the agency to fill . . . by regulation.”12 The underlying rationale is that “‘policy choices’ should be left to Executive Branch officials ‘directly accountable to the people.’”13 The doctrine is also a pragmatic one. As subject matter experts, agency officials also are far better equipped than judges to make nuanced interpretive decisions.

The Chevron doctrine reaches virtually all corners of the administrative landscape. On an almost weekly basis, we hear news stories about new agency rules issued by the Federal Communications Commission, Securities Exchange Commission, Environmental Protection Agency. The Clean Air Act, Telephone Consumer Protection Act, and countless others are constantly and consistently developing through agency action. However, despite its monumental significance, Chevron is not without its critics. In recent years, Supreme Court justices, congressmen and legal scholars alike have questioned the constitutionality of the Chevron doctrine.14

The most common refrain from Chevron critics appears to be that it encroaches on the judiciary’s core functions.15 The Supreme Court famously declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is”16 Critics argue that Chevron interferes with this constitutional directive by transferring judicial power from the judiciary to the executive.17 Essentially, critics fear that agencies will both create new law by virtue of their statutory interpretation and supersede the role of the judiciary.

Justice Clarence Thomas may be the most notable critic of Chevron deference. In a 2015 decision, Michigan v. E.P.A., Justice Thomas questioned the constitutionality of the administrative scheme created by Chevron and its progeny. In Michigan, the Court considered whether the EPA must consider costs when deciding to regulate.18 Writing for a 5-4 majority, Justice Antonin Scalia declared that the EPA must consider costs and that the agency interpreted the...

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