Supreme Court strips federal agencies of widely used power, kicks it to courts

Simone Del Rosario:

The Supreme Court has just overturned 40 years of legal precedent, nullifying the most cited Supreme Court administrative law decision of all time. 

I’m talking about the Chevron doctrine, which has been in place since 1984. This week’s ruling confirms critics’ view that Chevron gave government agencies too much power in interpreting laws passed by Congress. 

The Chevron doctrine said that when a law is open to interpretation; when the intent of Congress in passing that law is unclear; when the statute is ambiguous; courts should defer to the agency’s interpretation of that law, as long as it’s sensible. 

In overruling Chevron, Chief Justice John Roberts wrote: “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

The case that led SCOTUS to overturn Chevron is Loper Bright Enterprises v. Raimondo, as in Gina Raimondo, the Commerce Department Secretary. Loper Bright Enterprises is a commercial fishing company. 

There’s a law that says the National Marine Fisheries Service can require fishing companies to allow federal agents on board as observers. But the agency also interpreted that statute to mean it could require the fishing companies to pay for the salaries of those federal observers. Loper fought that assumption all the way to the Supreme Court. 

In a concurring opinion, Justice Neil Gorsuch wrote, “Today, the Court places a tombstone on Chevron no one can miss.”

In her dissent, Justice Elena Kagan wrote, “Given Chevron’s pervasiveness, the decision to do so is likely to produce large-scale disruption. All that backs today’s decision is the majority’s belief that Chevron was wrong—that it gave agencies too much power and courts not enough.”

I want to bring in Caroline Cecot, Associate Professor of Law at Antonin Scalia Law School at George Mason University. Caroline, thank you for joining us right after this decision came down. I wanted to just first get your initial reaction to the impact of this decision.

Caroline Cecot: Great to be here. And my first reaction was, wow, they actually did this. I mean, this could turn out to be a big deal, especially in its practical implementation. And I guess another small reaction I had is, you know, how little the majority opinion authored by Chief Justice Roberts really thought about that practical, the practical implications of this or seem to downplay them.

Simone Del Rosario: All right, let’s expand on that a little bit more. What do you mean by that?

Caroline Cecot: Well, you know, one thing that I do a lot of research in is in the environmental space and in the energy space. And a lot of those statutes are very complex. They deal with a lot of issues of expertise, issues of trade-offs between competing interests. And when we look in those cases, you look at these statutory interpretation questions, they’re really fraught with intersecting expertise and political policy preferences that can change in different administrations, et cetera. The Chevron case is a perfect example of this, actually. In the Chevron case, this was the EPA under President Reagan adopting a more flexible interpretation of when a source would trigger more stringent standards. And the court had to sort out whether this interpretation was authorized by the statute. But the statute just wasn’t clear about how to answer that question. It talked broadly, obviously, about the importance of environmental protection, pollution reduction, but then it also talked about economic growth and how it’s important to think about those issues. So how should the court figure this out? Its options basically were make some decision on the question despite not having any expertise on the subject matter, the statute, or the appropriate balancing of these competing interests or any political accountability for its decision or allow the agency to make this choice as long as it’s within these reasonable bounds. And the court went with option two, and that’s essentially the Chevron decision on what to do in these kinds of cases. And meanwhile, in this case, I mean, in Loper -Brite, Chief Justice Roberts talked about statutory interpretation much more abstractly or simplistically and didn’t really grapple with these kinds of issues. The dissent, which was authored by Justice Kagan, offers numerous examples about how statutes implicate these kinds of expertise and policy choices.

Simone Del Rosario: The majority explicitly stated that any interpretations made to this point under Chevron’s stance. So we’re not going to see this huge 40 -year unraveling of case law, basically. But what do you envision happens next when agencies and businesses are navigating through largely vague statutes that they operate under?

Caroline Cecot: Right. So the majority’s answer essentially is that without Chevron, we go back to a time where the background rule on how a court deals with this is something referred to as Skidmore, Skidmore deference or Skidmore respect. And Skidmore, I’ll call it Skidmore deference, basically says that you kind of give the agency’s interpretation the respect it deserves based on how thoroughly reasoned it was. this is a very difficult concept to wrap one’s mind around. I teach administrative law and this is something we talk a lot about our students and I, you know, what are the difference? How would this be decided under Skidmore? You know, and not to just a few years ago when the court was deciding a case. Kaiser v. Wilkie, which was about a related concept about whether to defer to an agency’s interpretation of its own regulation, so different, not a statute, at oral argument, the chief justice had this funny remark that I actually play for students, which is, counsel, to get back to the stare decisis questions, I think the issue depends, at least in part, on how much of a change you’re asking. And one of the things I have trouble getting my arms around is if you start with our and recognizing the limitations on our that have accumulated over the years and you’re changing that to skidmore, which I find hard to get my hands around too. I think I know more about what a moiety is than I know what skidmore deference is. And so if the chief justice, you know, made this joke during oral arguments about how difficult it would be to apply skidmore, I, you know, I’m glad we’re not looking back, but looking at the future, I think this is going to lead to a lot of inconsistency and a lot of litigation. And probably, and I hate to say this, but this is based on some research by Ken Barnett, Christopher Walker, and Christina Boyd. We’re going to see more decisions that are influenced by the makeup of the panel, whether it’s a more liberal panel or more conservative panel.

Simone Del Rosario: How much of this is on Congress for writing these ambiguous laws to begin with? Do you think that Chevron has allowed them to put too much legislative authority on agencies?

Caroline Cecot: So some research has shown that Congress is aware of Chevron. So it is possible that in some ways they leave some ambiguities purposely because they want agencies to fill in these gaps using their expertise, which I would find perfectly appropriate within the bounds of constitutionally correct delegations. That said, now that there is no Chevron and Congress has to write statutes, I guess I’m in the camp where, and I don’t say this to degrade Congress in any way, I think it’s just impossible to write a perfect statute that includes everything at the outset. I think there’s something that happens with experience under a statute where agencies realize that something’s not working or the facts on the ground change. That’s something I care a lot about. And the agency has to respond to these changing facts on the ground. The whole scheme of administrative implementation of statutes is partly because we get some efficiency benefits from this. If we revert back to Congress has to do everything at the outset, we’re gonna see a lot of increases in inefficient regulatory actions, I think across the board.

Simone Del Rosario: But in the same vein, critics of Chevron have said that this precedent to this point has allowed these agencies far too much authority and deference to just say, this is how they interpret it, so that must be the way that it is, and kind of takes the issue away from courts, takes the issue away from Congress when the majority clearly believes that that subject does belong in the courts.

Caroline Cecot: It doesn’t take the issue away from the people though, because at least as compared to courts, agencies are more politically responsible and we see changing for presidential administrations all the time. I mean, and I say, I don’t mean this, I say this because, you know, Chevron, the doctrine of Chevron itself to give deference to agency interpretations, it’s neutral. And then the Chevron case itself, as you know, as I recounted, this was an agency that wanted to take a deregulatory action. But of course, Chevron could also allow an agency to take more aggressive agency action. Over time, the doctrine became associated with judicial acquiescence to these ever increasing grabs of power by the agency, or that’s how it’s sort of thought about, which started this anti -Chevron movement that even led to this question of whether to overrule it. But I think at its core, Chevron is just saying, look, here we have a statute that the agency has to that Congress wants the agency to implement given what’s happening on the ground. And here’s the way that the agency has decided to do this. Is it reasonable? If it’s not, then no. And obviously, I almost forgot the first step. If it goes against Congress’s language, that’s out. Congress is supreme. The agency has to do what Congress allows it to. But at the point that there’s not a clear answer and it’s a reasonable interpretation. I mean, I think it should go to the agency. And if the people disagree with this, you get a new, you have an election, you have a new presidency, you have a new administration, and then you have new ways of interpreting the statute. I mean, I don’t mean to also defend this process too much because I’m someone who I think it’s important to have predictability. So I say this as someone who knows that there’s another backstop, which is this other doctrine, State Farm, which ensures that agency decision-making is fact-based, that there’s logical connections. So, you know, even though there might be some policy reversals in the presidencies, it always requires some explanation. To me, this felt, to this point, this felt like a nice balance, making sure that courts aren’t making decisions that are actually politically motivated, but unaccountable, that leave Congress in sort of an impossible position and leave us in an inefficiency spiral, but also, you know, cabined because of this reasonableness inquiry.

Simone Del Rosario: Do you think that the National Marine Fisheries Service overstepped their bounds by saying that fishing companies had to pay for these federal observers?

Caroline Cecot: You know, that’s a tough one for me to answer because I think most people, most folks that I’ve talked to seem to think that even if there were not a world of Chevron, that the answer is that the marine fisheries overstepped in some way. When I looked at the history behind the statute itself, this is the Magnuson Stevens Act, that amendment that created this kind of situation where these councils are allowed to require observers on domestic vessels, but then also there’s a separate provision for one of the Pacific fisheries to be able to spread some of these costs in specific ways with some limits. I mean, that amendment happened because that fishery was the first, that council was the first pre that amendment to want to impose these costs. And, you know, during the deliberations on this, the industry protested in some ways of bearing the costs and wanted taxpayers to bear the costs. And the council had said, go to Congress with that, go to Congress with that, beg them for it, but we’re going to impose this on you because we need to save the fishery. And so to me, the more clear answer here is that The default is that the industry pays and if they don’t want to pay, they can lobby Congress and get their own provision, which is I think what happened with the Pacific fisheries where they got a provision that talked a little bit more about capping these fees.

Simone Del Rosario: As Gorsuch said, the court today placed a tombstone on Chevron. So regardless of how helpful you found it to be as far as keeping things more stable in this system between agencies and courts and businesses, it’s effectively gone. Who’s the big winner today?

Caroline Cecot: The big winner, well, definitely lawyers. Because what I said about, you know, skid more deference, being hard to wrap yourself around. I mean, I think this is going to trigger more litigation over agency action now on, you know, robust litigation on both the fact -based front with State Farm and the legal interpretation front with now skid more deference. Other than that, I mean, because I have a different view of Chevron, I didn’t see it as anti -regulatory or pro -regulatory. I think a loser in this in some ways is each presidential term, they’re going to have to grapple with a lot less flexibility in their statutes and a lot less ability to respond to emerging issues on the ground. without having to go to Congress. And then Congress is gonna be, they’re gonna have to change some things because as pessimistic as I was in my first recount, I mean, they do have to step up at this point in some ways, and at least responding to big emergencies that come up, they will need to, and that’s already been true in some ways with the major questions doctrine, but they will need to do a lot more, schedule a lot more time for legislation.

Simone Del Rosario: Yeah, Congress, do your job. Caroline Cecot, Associate Professor of Law at Antonin Scalia Law School at George Mason University. Thank you so much for your thoughts today as we just got this ruling down.

Caroline Cecot: Thank you, Simone.