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

• Author: Thomas M. Cull
• Position: Vol. 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 Clean Air Act unreasonable when it found to the contrary. While the EPA was entitled to deference in interpreting ambiguous statutory provisions, Justice Scalia noted that agency interpretations nonetheless must be reasonable to pass muster. Justice Thomas went a step further. In a concurring opinion, Justice Thomas argued that Chevron has disrupted the constitutional order by giving agencies the impression that it is their job to legislate under the guise of “interpreting” statutes. Judges have, in his view, improperly acquiesced to this transfer of power. The Constitution commands courts to exercise “independent judgment” when interpreting the laws. The transfer of judicial functions to agencies violates this constitutional directive. At the time, Justice Thomas’s concurrence was remarkable but hardly mainstream for the Supreme Court. None of Justice Thomas’s colleagues joined in his concurrence. The tide appears to be shifting.^[19]

Since Michigan v. E.P.A., Justice Thomas has earned a new ally on the High Court – Justice Neil Gorsuch, who has also openly questioned the viability and constitutionality of the Chevron doctrine. In a 2016 opinion for the Tenth Circuit Court of Appeals, Gutierrez-Brizuela v. Lynch, then-judge Gorsuch wrote in a concurring opinion that Chevron was “at odds with the separation of legislative and executive functions.”^[20] Justice Gorsuch questioned the underlying premise of the Chevron doctrine: that we should infer from any statutory ambiguity Congress’s intent to delegate its legislative authority to the executive to make “reasonable” policy choices.²¹ In Gorsuch’s view, the doctrine “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”²² “Maybe the time has come,” he opined, “to face the behemoth.”²³

Justices Gorsuch and Thomas now may have another like minded colleague on the bench. Justice Brett Kavanaugh has at least indirectly questioned the wisdom of the Chevron doctrine. In a 2017 keynote address at Notre Dame University, Kavanaugh argued that the Chevron doctrine “encourages agency aggressiveness on a large scale.”^[24] “Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes.”²⁵ While he maintained that it makes sense in some cases, he expressed an interest in meaningfully limiting the doctrine.²⁶

In addition to the Supreme Court, Congress has also sought to lay siege to the Chevron doctrine. In 2016, the House introduced the “Separation of Powers Act,” or SO-PRA.²⁷ The legislation would amend section 706 of the Administrative Procedures Act to require courts to “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules.”²⁸ “The bill,” its supporters argue, “ensures proper judicial review, empowering the courts—not agencies—to interpret all questions of law.”²⁹ SOPRA proponents suggest that Chevron has permitted agencies to effectively create law and supplant the role of the judiciary. “For too long, unelected bureaucrats have relied on Chevron to expand their own authority beyond what Congress ever intended,” said Sen. Chuck Grassley, then-chairman of the Senate Judiciary Committee.³⁰

Yet the scheme proposed by SOPRA supporters threatens chaos. In a 2013 opinion, City of Arlington v. FCC, the late Justice Scalia highlighted the problems associated with de novo review. [De novo review] would simply punt that question back to the Court of Appeals, presumably for application of some sort of totality-of-the-circumstances test—which is really, of course, not a test at all but an invitation to make an ad hoc judgment regarding congressional intent. Thirteen Courts of Appeals applying a totality-of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos.³¹

Ultimately, it appears that Congress is unlikely to pass legislation abrogating Chevron. Although the House passed SOPRA, legislation under consideration in the Senate does not include language from SOPRA or directly curtail Chevron.³²

The 1984 Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. has been a hallmark of administrative law for more than three decades. Now under attack on multiple fronts, the future of the doctrine is uncertain. Although statutory reform appears unlikely, the Supreme Court has become increasingly hostile to the doctrine. Justices Gorsuch and Thomas have expressed skepticism, or outright contempt, for Chevron, and Justice Kavanaugh appears likely to join his conservative colleagues in calling for its abrogation. While the Court appears more likely to slowly erode the Chevron doctrine than to abrogate it altogether, the future of the modern administrative state is undoubtedly in flux.

Thomas Cull is a business litigation associate at Womble Bond Dickinson (US), LLP, where he focuses on complex commercial disputes including commercial, mass torts, antitrust, and environmental litigation.

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Notes:

[1] 467 U.S. 837 (1984).

[2] Peter M. Shane & Christopher J. Walker, Foreword, 83 Fordham L.Rev. 475 (2014).

[3] This statement is based on the number of times Chevron was cited to date at the time this article was submitted for publication.

[4] Jonathan R. Siegel, The

Constitutional Case for Chevron Deference, 71 Vand. L.Rev. 937, 943 (2018) (observing that, since the 19^th century, federal courts gave “respectful consideration” or “great respect” to an agency’s contemporaneous construction of a statute that the agency administered).

[5] Id.

[6] Courts have modified and expanded the Chevron doctrine since the 1984 decision. For example, under the “Major Questions” doctrine, the Supreme Court has held that some administrative matters are so consequential that Chevron does not apply. See, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (“In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.”). Certain agency actions fall outside of the scope of Chevron altogether. See Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (“Interpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”). However, the evolution of Chevron deference and its progeny are not pertinent to this discussion.

[7] Chevron, 467 U.S. at 842–43 (footnotes omitted).

[8] Id. at 843.

[9] Id. at 843–44 (footnotes omitted).

[10] Id.

[11] Siegel, supra note 3, 944–45.

[12] Peter M. Shane & Christopher J. Walker, Foreword, 83 Fordham L.Rev. 475, 477 (2014); see Chevron, 467 U.S., at 843–44.

[13] Epic Systems

Corp. v. Lewis, 138 S.Ct. 1612 (2018) (quoting Chevron, 467 U.S. at 865; 73A C.J.S. Public Administrative Law and Procedure § 519.

[14] Siegel, supra note 3, 946–47.

[15] See, e.g., www.heritage.org/courts/report/doomed-deference-doctrines-why-the-days-chevron-seminole-rock-and-auer-deference-may.

[16] Marbury v.

Madison, 5 U.S. 137, 177 (1803).

[17] Siegel, supra note 3, 948–49.

[18] Michigan v.

E.P.A., 135 S.Ct. 2699, 2700–01 (2015).

[19] Id.

[20] 834 F.3d 1142, 1154 (10th Cir. 2016).

[21] 834 F.3d at 1152.

[22] 834 F.3d at 1149.

[23] Id.

[24] Brett M. Kavanaugh, Keynote

Address: Two Challenges for the Judge As Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L.Rev. 1907, 1911 (2017).

[25] Id.

[26] Id. at 1912.

[27] Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. (2016).

[28] H.R. 4768 § 2(3).

[29] See Press Release, Orrin Hatch, Senate, Senate Leaders Introduce Bill to Restore Regulatory Accountability (July 19, 2017).

[30] Id.; see also Press Release, Representative Bob Goodlatte, Goodlatte Introduces Major Regulatory Reform Package to Promote Economic Growth & Job Creation (Jan. 3, 2017), https://goodlatte.house.gov/news/documentsingle.aspx?DocumentID=739.

[31] City of

Arlington, Tex. v.

F.C.C., 569 U.S. 290, 307 (2013).

[32] Nicholas R. Bednar & Kristin E. Hickman, Chevron’s Inevitability, 85 Geo. Wash. L.Rev. 1392, 1461 (2017) (discussing SOPRA and contrasting it with proposed legislation in the Senate).

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