Statutory Construction in the Administrative State

• Pages: 93-103
• Author: Richard J. Pierce, Jr.

93

Chapter 5

STATUTORY CONSTRUCTION IN

THE ADMINISTRATIVE STATE

The Supreme Court made a major change in its approach to

statutory construction in its landmark 1 984 decision in Chevron v.

Natural Resources Defense Council.

1

At the end of its Term in 2024,

the Supreme Court overruled Chevron in Loper Bright Enterprises v.

Raimondo. Because Chevron was in effect for 40 years and was the

basis for over 18,000 court decisions that remain in effect, this

chapter will begin with a description of Chevron. That will be followed

by a description of Loper Bright and a description of Skidmore v.

Swift & Co.,

2

the case that provided the framework for judicial review

of agency interpretations of agency-administered statutes before

Chevron and that will provide the framework again after Loper

Bright.

Prior to Chevron, judicial review of agency constructions of the

statutes they implement was characterized by pervasive

inconsistency and unpredictability. Two cases decided in 1944

illustrate the problem. In NLRB v. Hearst Publications,

3

a five-

Justice majority criticized a circuit court for ignoring the NLRB’s

construction of the term employee, as that term is used in the NLRA

and for instead drawing on definitions of the term adopted by courts

for use in other contexts like tort law and tax law. The Court upheld

the agency’s construction of the term and instructed reviewing courts

to uphold an age ncy construction of an agency-administered statute

if it has “a reasonable basis in law.” The majority explained why such

a deferential standard of review was appropriate:

Everyday experience in the administration of the statute

gives [the agency] familiarity with the circumstances and

backgrounds of employment relationships in various

industries, with the abilities and needs of the workers for

self-organization, and with the adaptability of collective

bargaining for the peaceful settlement of their disputes

with their employers.

During the same Term, howev er, a six-Justice majority did just

what the Hearst majority criticized the circuit co urt for doing —it

ignored the agency’s construction of a statutory term based on the

1

467 U.S. 837 (1984).

2

323 U.S. 134 (1944).

3

322 U.S. 111 (1944).