Reuters Legal News
After ‘ Chevron ’ deference , “ respect ”: ‘ Loper Bright ’ and agency policymaking
By Brittany Pemberton , Esq ., and Daniel Pope , Esq ., Bracewell LLP JULY 8 , 2024
After four decades of Chevron ’ s influence on agency behavior and administrative litigation , the U . S . Supreme Court has eliminated the deference doctrine in its opinion in Loper Bright Enterprises v . Raimondo ( consolidated with Relentless Inc . v . U . S . Department of Commerce ).
First articulated in the Supreme Court ’ s 1984 decision in Chevron v . Natural Resources Defense Council , the deference doctrine has been cited in more than 18,000 decisions and analyzed in more than 22,000 academic publications and legal treatises .
Chevron prescribed that courts review the lawfulness of agency rules and decisions in a now discarded “ two step ” process . First , courts evaluated whether a statute spoke clearly to the issue under review — if the statute was clear , “ that [ was ] the end of the matter .”
By a 6-3 vote , the Supreme Court overruled Chevron and held the courts must exercise their independent judgment to “ decide all relevant questions of law ,” including interpreting complex or technical statutes .
Second , if the statute was vague or ambiguous , and the agency ’ s interpretation of the statute was permissible or reasonable , the reviewing court “ deferred ” to the agency ’ s interpretation .
But as courts applied Chevron deference in the decades following the decision , the doctrine proved to be controversial and unwieldy . Among other things , critics observed that the doctrine created an often impossibly high hurdle for plaintiffs complaining of unlawful agency action and enabled unelected agency leaders to execute wide policy shifts between presidential administrations . To make matters worse , the Supreme Court and the Courts of Appeals had to continually refine , tweak , and tailor the application of Chevron , transforming the two-step approach into what Chief Justice John Roberts called a “ dizzying breakdance .”
The challenge to Chevron
Now that dance is over . By a 6-3 vote , the Supreme Court overruled Chevron and held the courts must exercise their independent judgment to “ decide all relevant questions of law ,” including interpreting complex or technical statutes . Accordingly , courts now must determine the “ single , best meaning ” of the text and may no longer defer to an agency ’ s interpretation simply because a statute is ambiguous .
The case involved a rule issued by the National Marine Fisheries Service ( NMFS ) under the Magnuson-Stevens Act ( MSA ) which required Atlantic herring fishermen to pay for onboard thirdparty observers to collect data for government use . Although the MSA authorizes NMFS to require such payments in certain circumstances , the statute is silent regarding the Atlantic herring fishing industry .
Vessel owners challenged the rule in separate appeals to the District of Columbia U . S . Court of Appeals and the 1st U . S . Circuit Court of Appeals . Each court relied on Chevron deference to uphold NMFS ’ s rule ; in one case , the court treated the absence of clear statutory direction as an “ ambiguity ” and concluded that NMFS ’ s rule was a reasonable agency resolution of that ambiguity . In the other , the court declared the rule within NMFS ’ s statutory authority but without explaining how it was applying Chevron . Supreme Court granted certiorari in each case and consolidated the appeals .
” Chevron is overruled .”
Writing for the Court ’ s majority , Chief Justice Roberts explained that Chevron deference lacked foundation in the Court ’ s prior administrative law precedents before 1984 . In the Supreme Court ’ s pre-Chevron agency cases , the Court followed its obligation under Article III of the Constitution to “ say what the law is .” Although it often considered agency views of a statute and typically treated agency findings of fact as binding , “[ n ] othing in the New Deal era or before it ” resembled Chevron deference on questions of law .
The Supreme Court also found that Chevron deference is inconsistent with the codification of these principles in the Administrative Procedure Act ( APA ). APA Section 706 provides that a “ reviewing court shall decide all relevant questions of law , [ and ]
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