Administrative Agencies Under the High Court’s Scope: Cause for Excitement or Concern?

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In the October 2023 term, the Supreme Court will hear oral arguments for a seemingly mundane case, Looper Bright Enterprises v. Raimondo, regarding whether fishermen and fishing companies should pay for federal monitors under a 1976 Act of Congress (the Magnuson-Stevens Fishery Conservation and Management Act). However, underlying these cases is a significant question: Should the Court overturn its precedent from Chevron v. Natural Resources Defense Council, Inc. (1984)? If so, the Justices would alter almost 40 years of administrative law precedent (Howe, 2023).

In Chevron, the Court outlined a two-step analysis for administrative agency rules: first, checking if Congress directly addressed the issue, and if not, determining if the agency's interpretation aligns with a permissible construction of the statute and prior case law (467 U.S. 837, 842-843) This process involves examining Congress's interpretation (Chevron part one) and then assessing the agency's alignment with the statute and precedent (Chevron part two).

Though this two-step inquiry may seem non-contentious on its face, the Court has given “...considerable weight…to an [agency’s] construction of a statutory scheme, and the principle of deference to administrative interpretations” (id at 844). This form of deference has been the source of notable criticism amongst legal scholars, lawmakers, and even the Justices themselves—including Justice Gorsuch—who believe that it violates Articles I, II, and III of the Constitution (Berry & McKinney 2023). Yet those who defend the doctrine argue that in today’s society, highly technical and complex issues—which are handled through agencies—are better left to officials within those departments, as opposed to judges who may not necessarily have the aptitude for deciding on such matters. While the debate on these issues has been long-standing, it is undeniable that the Court’s decision to strike down Chevron would have dramatic consequences on the operation of the American administrative state.

Squaring Chevron within the Separation of Powers System

Article I, Section 1 of the Constitution states that “[a]ll legislative powers herein granted shall be vested in Congress,” meaning that these powers may not be exercised by, nor delegated to, other branches or agencies. This tension between the text of the Constitution, and Chevron’s deference to agency enactments—many of which assume the scope and applicability as congressionally enacted laws—has been the source of long-standing debate between legal scholars, judges, and other parties. 

For those on the anti-Chevron front, many see it as “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” and plainly at odds with the Vesting Clause’s mandate (Kavanaugh 2015: 2150). Likewise, by “wrest[ing] from the Courts the ultimate interpretative authority to ‘say what the law is’ and by “hand[ing] it over to the Executive Branch,” some argue that Chevron creates yet another separation of powers issue, arguing, in particular, that Article III—providing the courts with their authority—is rendered entirely obsolete by having judges defer to agency interpretations (Harvard Law Review 2010: 2047-48). In instances where statutory silence within an agency enactment implicates contentious and far-ranging powers, many state that Chevron simply cannot be squared with the Constitution’s design (ibid: 2048).

On the other hand, proponents of Chevron argue that there is historical evidence suggesting that the Framers opposed the notion of judges making specific policy decisions or engaging in some form of policy discretion (ibid: 2054). As a practical matter too, it is difficult to contend that judges have the technical knowledge and expertise required to understand the complex topics addressed in agency rules, meaning that judges are better adept with delegating such interpretative authority to officials who possess those items (Liu 2014, 321). Another source of support for Chevron may be found in the rule of lenity, an early form of statutory interpretation that barred federal judges from finding criminal defendants liable if their conduct was not clearly barred by a vague penal statute (Harvard Law Review 2010: 2055). As some argue, Chevron may be seen as an extension of the rule of lenity, as it forbids the judiciary from exercising policy judgments to ensure that such decisions remain within the legislative sphere (ibid: 2056).

Questions of Statutory Proper Interpretation

Another hotly debated issue regarding Chevron is the extent to which a statutory interpretation should be deemed “reasonable” under step two of the test. Though courts are required to defer to agency interpretations if “Congress has delegated authority to definitively interpret a particular ambiguity in a particular manner,” there is no method for determining the “reasonableness” of an agency’s interpretation of its own statute (Arlington v. FCC, 569 U.S. 290, 1883 (2013)).

What’s worse is that, as scholar Jerry Mashaw has observed, “legitimate techniques and standards for agency statutory interpretation diverge sharply from [those] for judicial statutory interpretation” (Mashaw 2005: 504). This means that there is little the law may offer in terms of resolving such ambiguities. Prior to the Court’s decision in Chevron, the Justices often employed a context-specific interpretation, in that when a statute expressly delegated authority to define a statutory term or method for carrying out a particular provision, deference to any agency interpretation would be required (Liu 2014: 328-329). This view has been advanced by Chief Justice Roberts, evidenced by his dissent in the Arlington case, where he argued that the Court should defer to agency interpretations under Step Two if it has “elucidate[d] a specific provision of the statute by regulation” (569 U.S. 290, 1881).

An issue with this method, however, arises from the fact that Congress may not specify its specific intent behind particular statutory items, nor provide any “tangible evidence” for an interpretation it has put forward (Liu 2014: 330). Likewise, as Justice Kagan has expressed, “Congress so rarely discloses (or, perhaps, even has) a view on this subject as to make a search for legislative intent chimerical and a conclusion regarding that intent fraudulent in the mine run of cases,” further undermining the applicability of the contextual framework (Barron & Kagan 2001: 203). 

During his time on the Court, Justice Breyer argued for a more comprehensive and multi-factored analysis for Chevron’s step two. In the Arlington case, he maintained that judges should examine “the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time” (569 U.S. 290, 1875 (quoting Barnhart v. Walton (2002)). Some of these items—including ongoing agency considerations of particular statutory questions and the expertise and complexity of the agency’s administration—may be more easily elucidated from Justice Breyer’s methodology. Yet his approach does leave many other considerations unresolved, making it difficult to apply his framework for deciphering “reasonable” constructions, particularly ambiguous, or far-fetched ones (Harvard Law Review 2010: 2056).

Other interpretive approaches include an enlarged, context-specific approach advocated by Justice Thomas and former D.C. Circuit Judge Hirsch Silberman in which a tribunal should account for “the [specific] language itself, the…context in which that language is used, and the broader context of the statute as a whole” (Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Another proposal has been to apply the Administrative Procedure Act’s (APA) “arbitrary and capricious” or “hard look” review, a view that has been advanced by Justice Kagan and former Justice Kennedy (Shaprio & Murphy 2016: 358-360).  The standard contained within the APA instructs judges to invalidate agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U.S. Code § 706 - Scope of Review).

A Post-Chevron World: Realistic or Disastrous?

Despite doctrinal and Constitutional challenges, Chevron forms the basis for modern agency rulemaking and guides federal courts in approaching agency actions. The doctrine’s widespread use in court decisions and legislative reliance emphasizes its role in promoting accountability, uniformity, predictability, and agency expertise. Arguably, therefore, a decision to overturn Chevron would disrupt a significant precedent crucial to the modern administrative state” (Prelogar et al., 27).

Likewise, when viewed in positivist terms, Chevron fits aptly within the nation’s Constitutional system. The doctrine asserts that federal courts should defer to agency interpretations of the law only if a statute is “silent or ambiguous” (Chevron 467 U.S. at 843) on a particular rule or issue, and that this process occurs after the exhaustive process of applying the law to fashion a solution to the particular ambiguity. By engaging in this, judicial tribunals also limit the application of agency interpretations to specific cases, rather than creating a blanket rule for deference in similar scenarios (Liu 2014: 315-316), thereby ensuring that Courts retain their Article III responsibility of interpreting and applying the law. 

In a similar vein, if Congressional intent regarding a particular issue may be elided from Congress’s delegation of interpretative authority to administrative agencies, courts are generally fulfilling their function in determining “what the law is” (Liu 2014: 327) by creating new law that is more legitimately fashioned by politically-accountable agency personnel, as opposed to the Courts, especially in instances where the law cannot provide a clear and definitive answer to statutory ambiguities.

Finally, it simply cannot be maintained that judges can rely upon the same interpretative methods and rationales that had previously been employed prior to Chevron, since “...courts were [oftentimes] confronted with very few textual gaps…[and statutes] were far more detailed than those with which we are now familiar…” thereby permitting a judge to resolve ambiguities “...through the use of extratextual tools…” including common law and equity principles (Harvard Law Review 2010: 2058). Today, administrative rules and laws are far less detailed, and increasingly touch upon highly complex and technical matters the judiciary simply isn’t equipped to resolve, making it all the more necessary to leave such interpretations to the agencies tasked with fashioning them. Whether the High Court decides to overrule Chevron, its ruling will nonetheless have a pivotal impact on the application of this precedent, affecting thousands of individuals and personnel in the realm of administrative law.

References

Barron, David J., and Elena Kagan. 2001. "Chevron's Nondelegation Doctrine." The Supreme Court Review 2001 (2001): 201-265.  http://www.jstor.org/stable/3109689. 

Berry, Thomas A., and Isaiah McKinney. 2023. “Chevron Doctrine Continues to Haunt the Courts.” Cato Institute, January 6, 2023. https://www.cato.org/commentary/chevron-doctrine-continues-haunt-courts.

Howe, Amy. 2023. “Supreme Court Will Consider Major Case on Power of Federal Regulatory Agencies.” SCOTUSblog, May 2023. https://www.scotusblog.com/2023/05/supreme-court-will-consider-major-case-on-power-of-federal-regulatory-agencies/.

Kavanaugh, Brett M. 2015. "Fixing Statutory Interpretation."  Harvard Law Review 129, no. 2118 (2015): 2118-2163. https://harvardlawreview.org/wp-content/uploads/2016/06/2118-2163-Online.pdf.

Liu, Frederick. 2014. "Chevron as a Doctrine of Hard Cases.” Administrative Law Review 66 (Spring 2014): 285-344. https://www.jstor.org/stable/24475500.  

Mashaw, Jerry L. 2005. “NORMS, PRACTICES, AND THE PARADOX OF DEFERENCE: A PRELIMINARY INQUIRY INTO AGENCY STATUTORY INTERPRETATION.” Administrative Law Review 57, no. 2 (2005): 501-542. https://www.jstor.org/stable/40712248.

Prelogar et al., (2023). Brief for Amicus Curiae in Support of Respondents. Supreme Court of the United States, Case No. 22-451.

Shapiro, Sidney A., and Richard W. Murphy. 2016. "Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the Hard Look." Notre Dame Law Review 92, no. 1 (November 2016): 331-379. 

“Justifying the Chevron Doctrine: Insights from the Rule of Lenity.” (2010). Harvard Law Review, 123, no. 8 (June 2010): 2043-2064. https://harvardlawreview.org/print/vol-123/justifying-the-chevron-doctrine-insights-from-the-rule-of-lenity/.