SCOTUS Could Change How Government Agencies’ Power is Defined and Shaped by Chevron Doctrine

The United States Supreme Court is set to consider Wednesday a pair of cases that have the potential to redefine the standards for judicial review of rules and regulations adopted by government agencies.

Since 1984, judicial deference has been given to government agencies in their interpretation of ambiguous statutes guiding their rulemaking under a standard known as the Chevron doctrine.

The Court is now poised to either overturn, curtail, or clarify this doctrine, determining how this frequently cited and oft relied upon framework will be understood by those throughout the government going forward.

Depending how the Justices approach their ruling, these cases have the potential to dramatically restructure how the regulatory authority of governmental agencies is defined by lawmakers and sculpted by departmental officials.

What Is the Chevron Doctrine?

The Chevron doctrine — a term derived from the name of the case that originated it, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. — establishes a two-step legal test for determining when judicial review of an agency’s statutory interpretation is appropriate.

According to the Court’s decision in Chevron, it first must be determined if a statute is “silent or ambiguous,” and if so, the court must then consider “whether the agency’s answer is based on a permissible construction of the statute.”

“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” the Chevron decision states.

“Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit,” the decision continues. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”

Since it was first established, the Chevron doctrine has been applied in more than a hundred cases, but in recent years, the Court has referenced the standard less frequently.

The Major Questions Doctrine

Recently, the Court established the major questions doctrine, which is closely related to the Chevron doctrine in that both of these standards set parameters around the regulatory authority of governmental agencies and have frequently been applied in conjunction with or with reference to one another.

According to the Congressional Research Service (CRS), the major questions doctrine was first referred to in 2022 and requires agencies to point toward specific congressional authorization before taking action in “major questions cases.”

That said, the specific scope of the major questions doctrine is not yet known.

“[T]he Court has not clearly explained when an agency’s regulatory action will raise a question so significant that the doctrine applies, nor has it specified what legislative acts could constitute clear congressional authorization,” CRS said.

The Chevron and major questions doctrines are often applied in tandem with one another, although their exact relationship is not necessarily clear.

Generally, the Court has considered the major questions doctrine as a modifier of the Chevron doctrine “when an agency’s interpretation of an ambiguous statute concerns an issue of vast economic and political significance.”

In some cases, the Court has applied the major questions doctrine to the first prong of the Chevron test, arguing “that Congress did not authorize the agency to regulate the major question at issue.”

At other times, the Court has applied this doctrine to the second step of Chevron‘s test, concluding that the “agency’s interpretation was unreasonable because Congress did not clearly give it such authority.”

The CRS also noted that the major questions doctrine has also been used by the Court to reject engagement with the Chevron doctrine altogether. It is also important to note that the major questions doctrine has in some instances been applied independently of Chevron.

What Is Happening Now With Loper & Relentless?

The pair of cases currently before the Supreme Court are likely to bring some clarity as to what the future of Chevron deference will look like, providing answers as to whether the doctrine will be overturned or limited by the Court going forward.

These cases — Loper Bright Enterprises v. Raimondo and Relentless Inc. v. U.S. Department of Commerce — are both concerned with a rule promulgated by the National Marine Fisheries Service (NMFS) in 2020 requiring that fishermen cover the cost of third-party monitors on their vessels.

While Congress specifically granted the NMFS the authority to impose costs on fishermen in certain circumstances, paying for third-party monitors was not among those enumerated situations. Because lawmakers did not specifically prohibit such a regulation, the agency took their silence as an ambiguity open for interpretation.

In granting Loper‘s petition for a writ of certiorari, however, the Court asserted that it would specifically be considering a potential overruling or limiting of Chevron more generally, as opposed to its “proper application” to the particular cases at hand, thus formalizing the broader implications of their forthcoming opinion.

More specifically, the question taken up by the Justices in this case was “whether 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.”

Justice Ketanji Brown Jackson recused herself from the Loper case — as she served on the federal appeals panel that considered it earlier in the appeals process — thus leaving open the possibility of a 4-4 tie over the future of Chevron deference.

Consequently, the Court then granted cert for Relentless — which will be heard in tandem with Loper — allowing Justice Jackson to participate in the decision making process around the fate of the Chevron doctrine without weighing in on Loper.

House of Representatives Amicus Brief

Over the past several months, dozens of amicus briefs were filed in advance of January’s oral arguments, including from the U.S. House of Representatives.

In its brief, the House — as an institution — argues in favor of the Court limiting the applicability Chevron doctrine, suggesting that if the Justices were to uphold the interpretation that authority is delegated to an agency through lawmakers’ silence, it would “negatively impact the separation of powers between the Legislative Branch and the Executive Branch.”

The House also contends that “treating statutory silences standing alone as delegations of power would make it extraordinarily difficult for Congress to constrain agency authority,” urging the Court to determine that “when a statute fails to address whether an agency possesses a claimed regulatory authority, the agency lacks that power.”

“Requiring Congress to anticipate and account for every scenario that might involve an agency’s future assertion of regulatory authority is unworkable,” the House wrote.

The House also argued in its brief that if Chevron deference is granted to “new authority” claimed from “statutory silence,” “it is more likely that agencies will use silence to claim power that Congress never intended to delegate to them.”

“If agencies receive deference when they interpret statutory silence as a delegation of authority, they will over time substantially expand their own power,” the House said.

It is further explained in the brief that while Congress could theoretically pass legislation explicitly revoking power from an agency in response to an expansionary interpretation of authorizing legislation, this would create “a burden shift fundamentally inconsistent with the separation of powers.”

“In short, affirming the decision… would undermine the system of checks and balances that is a critically important safeguard against tyranny,” the House concluded. “The Court should reverse the judgement below and hold that statutory silence about whether an agency has a claimed regulatory authority is not an ambiguity that triggers Chevron deference.”

Click Here to Read the House of Representatives’ Full Amicus Brief

Amicus Brief of Twenty-One State Attorneys General

On the other hand, a group of twenty-one states — including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin — filed an amicus brief in favor of upholding the Chevron doctrine “subject to the limitations that Chevron itself sets forth.”

In their briefs, the state attorneys general argued that “the Chevron framework strikes an appropriate balance between, on the one hand, confining agencies to the parameters set by Congress, and on the other, allowing them to operate effectively within those parameters.”

The attorneys general emphasize that role that the Chevron doctrine has played in allowing for efforts of “cooperative federalism” to get off the ground, arguing that the framework creates a “predictable regulatory environment” in which long-term plans can be made and “fosters stability” in their implementation.

That said, the attorneys general do make the case that the Court ought to take this as an opportunity to clarify that the Chevron doctrine to make clear that the deference it affords is not a “blank check” for agencies to indiscriminately expand their authority.

“In sum, Amici States urge the Court to clarify Chevron rather than overrule it,” the attorneys general conclude. “Doing so would acknowledge the important role Chevron plays in applicable cases—and the reliance interests it has generated—while guarding against misapplication.”

Click Here to Read the States’ Full Amicus Brief

As of now, it remains to be seen exactly how the Justices on the Supreme Court will approach their consideration of the Chevron doctrine.

The majority opinion could potentially rule on the fate of Chevron in its entirety, or it may take a more limited approach to its interpretation, opting to either curtail or clarify the scope and applicability of the frequently-referenced framework.

Oral arguments for Loper and Relentless are scheduled for Wednesday, January 17.