Glenn C. Smith, an emeritus professor at California Western School of Law in San Diego, explains the stakes of the Supreme Court's upcoming decision on the future of Chevron deference and administrative law...
Even especially attentive Supreme Court watchers might underestimate the importance of a pair of cases the Court subjected to three and a half hours of argument on January 17. In a term full of cases pitting gun rights against domestic violence victims, determining access to medical abortion, and injecting the justices into presidential election politics, challenges to an arcane, decades-old administrative law doctrine could seem esoteric.
However, given their potential across-the-board impact on federal regulatory authority and the fundamental distribution of power between executive agencies and federal courts, Loper Bright Enterprises, Inc. v. Raimondo (No. 22-451) and Relentless, Inc. v. Dept. of Commerce (No. 22-1219) are this term’s sleeper cases to watch. Especially after the recently concluded oral argument, three observations seem especially pertinent.
But, first, a bit of context: Both Loper Bright and Relentless raise the same big question by challengers disputing the same unusual regulation. Charged by Congress with preventing overfishing and protecting the long-term health of the fishing industry, a relatively obscure agency, the National Marine Fisheries Service (NMFS), issued a final rule in 2020 providing that some commercial fishing boats could be required to pay the salaries of federally mandated onboard observers. The paired cases now before the Supreme Court challenge the decisions of two federal circuit panels upholding the NMFS regulation.
All of this may sound like the typical administrative/regulatory challenge. But what brought Loper Bright and Relentless to Supreme Court prominence was how the lower court judges applied a 40-year-old staple of regulatory review known as the Chevron doctrine. To make a complicated story short, in Chevron v. NRDC, 467 U.S. 837 (1984), the Supreme Court gave courts a two-step process for resolving claims that an agency action exceeds the enabling legislation under which the agency claims to operate. Under Chevron Step 1, courts use the traditional tools of statutory construction to determine whether Congress “directly spoke[ ]” about disputed statutory terms. If so, the court applies congressional intent to approve or disapprove the regulation. So far, so typical and uncontroversial.
Where Chevron gets very controversial is in Step 2, which tells courts to read statutory ambiguity as an implied congressional delegation of authority to the agency to use its best judgment about the statute’s reach. Courts should defer to the agency’s interpretation if it is “reasonable.”
Among many interesting takeaways from the Court’s handling of Loper Bright and Relentless, three stand out.
First, the oral argument provided regular evidence that, although the dispute over Chevron has its technical and downright jargony aspects—one example is Justice Barrett’s question near the end of argument “about the relationship between Brand X and [the government’s] suggestion that we ‘Kisorize’ Chevron”—fundamental and far-reaching issues are at stake.
Especially with the prodding of Justices Sotomayor, Kagan, and Jackson, the oral argument repeatedly emphasized what underlies the Chevron doctrine fight—whether regulatory policy on a vast array of potentially crucial issues will be made by executive branch experts reflecting current political dynamics or by less policy-savvy federal judges who may reflect contrary ideologies or jaundiced views about regulatory values. The final word is likely to rest with either the agency or the courts; a deeply divided Congress is unlikely to often pass corrective legislation when agencies or courts get it wrong.
With such high stakes, a second interesting, yet disturbing facet is how justices used Loper Bright and Relentless to tee up a broad/activist inquiry that was unnecessary for the Court to take on. The first issue posed in Loper Bright’s petition for Court review was the narrower question of whether the lower courts’ particular interpretation of the statute used by the NMFS was erroneous.
A holding to that effect would have been relatively straightforward. Even the agency admitted that its paid-observer rule was highly controversial. The federal government had to rely on several amorphous statutory terms; the government strained to overcome the seemingly plain negative implication of other narrower, specific, and express statutory provisions covering paid observers in inapplicable contexts. Thus, even if the controversy was worthy of Supreme Court attention—a questionable proposition—the Court had an easy way to kill off the NMFS rule on narrow, context-specific grounds. Normal principles of judicial restraint suggest the wisdom and propriety of this.
Instead, when the justices granted review to Loper Bright, they limited the questions presented. They bypassed the specifics of the NMFS rule to only consider “whether the Court should overrule Chevron or at least clarify” the doctrine by holding that statutory silence is not ambiguity triggering Step 2.
This issue framing (manipulation?) is not surprising. Three justices (Thomas, Gorsuch, and Kavanaugh) previously lambasted Chevron in written case opinions and (in the case of Kavanaugh) a scholarly article. These justices—and at least one other (it takes four justices to grant review)—were reaching out for a Chevron fight. They asked many Chevron-critical questions at oral argument; indeed, Justice Gorsuch served as a virtual one-man attack squad.
Speaking of oral argument, a third interesting facet of the Loper Bright and Relentless challenge is its illustration of how a high-level oral argument can illuminate the issues already argued at length in the briefs of the parties and in amicus (friend-of-the-Court) briefs. (BTW, that more than 70 amici filed briefs further underscores the importance of the Chevron challenges!)
Several big issues already emphasized in the briefs nevertheless came into sharper focus in response to detailed questioning from both pro-Chevron and anti-Chevron justices. For example, justices and advocates repeatedly disputed in depth whether Chevron is consistent with Article III judicial power, the frequency with which Chevron leads reviewing judges astray, how much havoc its overruling would cause (including how many of the four decades of Chevron-based court decisions could be reopened by anti-regulatory litigants), and whether Chevron faithfully implements or distorts the expectations of Congress in delegating regulatory power to administrative agencies.
Other typical oral argument dynamics were in evidence. Several justices posed hypotheticals designed to clarify how judges would use Chevron deference (or work without it) to deal with particularly poignant regulatory scenarios. (Justice Kagan asked an especially pertinent hypothetical based on imagined legislation to regulate the uncertain challenges of artificial intelligence.) And as happens often when the justices are closely divided, many of the questions seemed framed to persuade the jurists in the middle—likely Roberts and Barrett, whose questioning was both more sparing and more balanced.
Much close questioning sought to draw relevant legal distinctions. Extensive excursions into the difference between statutory silence and ambiguity, judicial review of legal questions versus policy questions, Chevron’s applications to rules and actions adopted without notice-and-comment rulemaking, and how Chevron deference differs from earlier judicial nods to administrative expertise (such as Skidmore deference) are likely to warm the hearts of administrative law aficionados.
Two exchanges seemed to break especially well for the federal government. One saw Solicitor General Elizabeth Prelogar offer multiple specific ways the Court could mend, not end Chevron in the signals it sends when deciding Loper Bright and Relentless. Another argument portion shined a light on challengers’ ultimate contention that Chevron deference is unconstitutional. This alarmed the pro-Chevron-overrule justices, both because it compromises another main challenger argument (that the deference question should be left to Congress) and raises the specter of the kind of aggressive constitutional ruling justices normally should avoid.
Ultimately, dodging what the federal government called “a convulsive shock” to the regulatory process depends on a majority of justices taking a cautious approach in Loper Bright and Relentless. Even if they don’t uphold or dispatch the NMFS rule on narrow grounds, they should retain Chevron but send signals to lower courts about how to properly use it and/or call it inapplicable to a narrow subset of rules Congress rejects by negative statutory implication. The consequences of a broad Chevron overrule are too great for the administrative/regulatory process and the Americans who are its intended beneficiaries.
The Court already has a reputation for needless activism by reversing abortion rights and affirmative action and applying an unnecessarily high-handed “major questions” doctrine to invalidate bold regulatory initiatives. An overreach in this term’s Chevron cases would cement growing cynicism that such results are not legally justified but merely reflect that an activist conservative majority now “has the votes.”
Let us hope that the Court’s ultimate resolution of Loper Bright and Relentless doesn’t turn an old adage on its head—by proving that easy cases (i.e., regulatory challenges easily decidable on narrow grounds) make especially bad law.
Emeritus Professor Glenn C. Smith taught constitutional law and Supreme Court decision-making at California Western School of Law in San Diego. He is the principal co-author of CONSTITUTIONAL LAW FOR DUMMIES [John Wiley & Sons, Inc. 2012].
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