Law Commons^™

Four Futures Of Chevron Deference, Daniel E. Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Chevron And Stare Decisis, Kent H. Barnett, Christopher J. Walker

Scholarly Works

In our contribution to this Chevron on Trial Symposium, we argue that the Supreme Court should not overrule Chevron in Loper Bright Enterprises v. Raimondo and its companion case Relentless v. Department of Commerce. We based our argument largely on statutory stare decisis. In particular, Chevron deference is a bedrock precedent in administrative law, relied on by the Supreme Court and the lower federal courts thousands of times since Chevron was decided in 1984. Congress, federal agencies, and the regulated public have also structured their affairs around the precedent. Conversely, the constitutional arguments against Chevron are unpersuasive, and the debate …

Aclp - Comments To The Fcc Re Net Neutrality - December 2023, New York Law School

Reports and Resources

No abstract provided.

Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper

Amicus Briefs

Amici write to address the first question presented: whether Chevron should be overruled. Properly understood, it should not. Chevron has been much discussed but not always understood. On the one hand, courts have sometimes misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of such aggressive applications. This case provides an opportunity for the Court to clarify what Chevron does and does not entail, while reaffirming the essential role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs. Many of …

Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers

Amicus Briefs

The principle of judicial deference to agency interpretations of law has been a pillar of this Court's administrative law doctrine for more than a century. This Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), formalized one version of that principle, creating the two-step framework that is now subject to a multifaceted attack. Among other things, Chevron's opponents argue that the doctrine is at odds with the original public meaning of the Administrative Procedure Act. This is wrong, and the text and history of that landmark statute provide no basis for …

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann

Faculty Scholarship

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

Faculty Scholarship

The question presented in Loper Bright Industries v. Raimondo¹ is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,² indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.^{3 …}

The Ghosts Of Chevron Present And Future, Gary S. Lawson

Faculty Scholarship

In the October 2021 term, the Supreme Court decided six cases involving federal agency interpretations of statutes, at least five of which seemingly implicated the Chevron doctrine and several of which explicitly turned on applications of Chevron in the lower courts. But while the Chevron doctrine has dominated federal administrative law for nearly four decades, not a single majority opinion during the term even cited Chevron. Three of those cases formalized the so-called “major questions” doctrine, which functions essentially as an anti-Chevron doctrine by requiring clear congressional statements of authority to justify agency action on matters of great legal and …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

How Chevron Deference Fits Into Article Iii, Kent H. Barnett

Scholarly Works

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …

Deference Is Dead, Long Live Chevron, Nathan D. Richardson

Faculty Publications

Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court Justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important.

This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside …

Goldilocks Deference, Daniel H. Cole, Elizabeth Baldwin, Katie Meehan

Articles by Maurer Faculty

Over the years, courts reviewing rules and decisions of federal administrative agencies have given those agencies greater or narrower latitude in interpreting enabling legislation, ranging from the “hard look” doctrine to various levels of deference under case names such as Chevron, Auer, and Skidmore. This article examines a distinct type of judicial deference that might arise only in a special subset of cases where an agency is sued by two different interested parties arguing diametrically opposed positions. For example, the EPA may be sued on a major, substantive rule by the regulated industry arguing that the rule …

Congress's Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence

Faculty Articles

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Retheorizing Precedent, Randy J. Kozel

Journal Articles

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?

The Apa And The Assault On Deference, Ronald Levin

Scholarship@WashULaw

Recently, in Kisor v. Wilkie, a concurring opinion by Justice Gorsuch argued at length that § 706 of the Administrative Procedure Act prohibits judicial deference to administrative interpretations of law. That section states that “the reviewing court shall decide all relevant questions of law.” This issue remained unresolved in Kisor, but the Supreme Court may well return to it soon as a potential argument against the validity of Chevron deference. Although a substantial academic literature has supported Gorsuch’s position on the APA question, this article disagrees with it. It argues that the text of § 706, surrounding statutory provisions, the …

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Georgetown Law Faculty Publications and Other Works

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. Chevron as construction is supported by powerful arguments; it …

The Science Of Administrative Change, Barry Sullivan, Christine Chabot

Faculty Publications & Other Works

Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to "deconstruct" the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a "war on science," implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data? …

The Science Of Administrative Change, Christine Chabot, Barry Sullivan

Faculty Publications & Other Works

Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to "deconstruct" the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a "war on science," implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data? …

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, …

A Softer, Simpler View Of Chevron, Peter L. Strauss

Faculty Scholarship

Justice Kennedy's concurrence in Pereira gives reason to hope that the Court may be finally catching on to the difficulties it created by Chevron's opening language, as distinct from its inherent reasoning. When courts quote language like "precise question" and "permissible" to limit themselves (as Justice Scalia and others unfortunately tended to reinforce by their quotations from the opinion), they stray not only from judicial function but also from the statute (APA) that instructs them how to review, and which strangely the opinion does not mention. But Chevron actually (a) independently found and defined a statutory gap within which …

Judge Kavanaugh, Chevron Deference, And The Supreme Court, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Popular Media

How might a new U.S. Supreme Court Justice Brett Kavanaugh review federal agency statutory interpretations that come before him on the Court?

To find at least a preliminary answer, we can look to his judicial behavior while serving on the U.S. Court of Appeals for the D.C. Circuit—and there is plenty of relevant Kavanaugh judicial behavior to observe. Since starting his service on the D.C. Circuit in 2006, Judge Kavanaugh has participated in the disposition of around 2,700 cases and has authored more than 300 opinions. Over a third of those authored opinions involved administrative law.

The Politics Of Selecting Chevron Deference, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Scholarly Works

In this article, we examine an important threshold question in judicial behavior and administrative law: When do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency's statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies-not judges-policy-making space within statutory interpretation. We expect, nonetheless, that whether to invoke the Chevron framework is largely driven by political dynamics, with judges adopting a less deferential standard when their political preferences do not align with the agency's decision. To provide insight, …

Cleaning Out The Statutory Junk, David Schoenbrod

Articles & Chapters

“Statutory junk” is my term for the mishmash of statutory commands to administrative agencies that have accumulated over the decades and now are having unintended consequences. Enforceable in a court of law, even a few words of statutory junk can thwart a statutory purpose or impose unnecessary burdens on the public. Unfortunately, Congress typically fails to protect us from the statutory junk. I propose a series of solutions to make Legislators discard legislative trash.

Administrative Law's Political Dynamics, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Scholarly Works

Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court’s desire to temper administrative law’s political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congress charged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory …

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.

This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole Rock …

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

Scholarly Works

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how …