Big News Of The Day: SCOTUS To Review Chevron Doctrine

And this really is big news.

Here are two tweets by law prof Jonathan Turley that confirm that the SCOTUS will expressly review the Chevron Doctrine and whether to overrule it. Turley is quoting the SCOTUS here—it’s not wishful thinking that maybe Chevron will be addressed in the decision. It will be:

Jonathan Turley

@JonathanTurley

Today the Supreme Court granted review in Loper Bright v. Raimondo, which involves a challenge to the Chevron doctrine and its heavy agency deference. Notably, the Court granted only on one of the questions concerning Chevron...

9:27 AM · May 1, 2023

...Here is the question: “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.”

9:27 AM · May 1, 2023

Before we go further, it will be best to at least describe Chevron. Chevron is the foundational SCOTUS decision that sets the basis for judicial deference to the supposed “expertise” of the administrative agencies that have been granted the power by Congress to administer vast areas of policy—the environment, labor, securities, and so much more. In effect, the Chevron “doctrine” means that, as long as the agency can present some reasonable sounding rationale for their policies and actions, courts will defer to their supposed expertise.

The implication of this is that agency rules and regulations are, in effect, legislation. Further, “administrative law judges” review cases arising from those rules and regulations. Those “judges” are not part of the independent Judicial Branch set out in Article III of the constitution—they are, despite their title, “Article I” legislative officials, which means that they are significantly beholden to the government side of any dispute. Getting a hearing on an agency matter from an independent Article III federal court often requires a time consuming and expensive appeals process that may, in the end, be rejected under Chevron. Congress has taken advantage of this doctrine to pass legislation that provides what is really just general guidance, while enabling these agencies to frame the practical applications that have transformed American life.

Here’s how Wikipedia describes this “doctrine”:

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers.^[1] The decision articulated a doctrine now known as "Chevron deference".^[2] The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: "whether the agency's answer is based on a permissible construction of the statute", so long as Congress has not spoken directly to the precise issue at question.

Conservatives have increasingly, and rightly (ha!) focused on Chevron as the foundation for the abusive Administrative and National Security State that the American Republic—administered through Executive Branch agencies with the collusion of Congress—has morphed into since the New Deal. Now, you can see from the date of Chevron, 1984, that the basic framework of the Administrative State has been in development for half a century, but Chevron, in a sense, marks its codification. The Administrative State’s legal high water mark.

The Roberts court has what appears to be a solid majority of justices who are solidly in favor of reining in the administrative case. Every single Republican appointee appears to be firm on this, including Roberts. All three Trump appointees are on record as very concerned about these issues—Gorsuch vociferously so. Thomas and Alito certainly are, as well. To overrule Chevron would be an enormous step forward in restoring constitutional governance to America because it would 1) force Congress to get back into the business of legislation, rather than delegation (to admin agencies), and 2) would put Executive agencies under the gun—they would no longer have the presumption of expertise and lawfulness on their side.

The SCOTUS has been nibbling at this whole issue, and has issued some recent decisions (most notably the WV v. EPA case) that seem to point clearly in the direction of eventually overruling Chevron. Just two weeks ago I wrote briefly about two cases—involving the SEC and FTC—that appeared to open the door to more aggressive federal judicial review of agency actions:

Briefly Noted: SCOTUS Undermines Administrative State

At that time Gorsuch complained that the SCOTUS should simply have overruled Chevron right then and there. As so often with the Roberts court, the Court appears to have been waiting for exactly the right case in which to do that, while carefully preparing the ground with more limited decisions. There is widespread agreement that the administrative state is out of control and that it has been seriously destructive of the basic constitutional system of checks and balances among the three branches of government. If any issue is within the wheelhouse of Roberts’ incremental style of jurisprudence, this current case could be it.

Three points.

First: As noted, this case fits within and is characteristic of Roberts’ jurisprudential model. Roberts’ tendency is to avoid sweeping overruling of past judicial precedents when possible. However, the abortion and 2A cases show that Roberts can also do sweeping—but for carefully considered reasons.

Second: I won’t pretend to understand the precise issue presented, without some clarifying examples: “whether … statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

Third: Notably, the question is framed in the alternative, and the issue of overruling Chevron is absolutely front and center:

Should the SCOTUS overrule Chevron, or

Should the SCOTUS clarify a narrower aspect of Chevron

That means that the door is wide open to overruling Chevron, and that will be the major issue debated by the justices. The “narrow clarification” alternative is more of a fallback position—or so it seems to me, given that we know that there are justices pushing for a sweeping rejection of Chevron. Which alternative is adopted will ultimately depend on debates among the justices. However—at the very minimum—we can expect another decision that will restrict judicial deference to administrative agencies, and will give additional freedom to lower court judges to more aggressively challenge agency actions. My seat of the pants guess is that this decision may hinge on whether this is the right case or not. I expect to see lots of speculation on that issue in the coming days and weeks, but the fact that the Court took this case with the intent of considering overruling Chevron is surely a sign that a bloc of justices wants to do exactly that. The implications are huge.

Now, a bit more on what’s going on here—courtesy of NRO relaxing its pay/subscriber wall. First off, KBJ has recused, so this will be an 8 justice decision. I’m not sure that this recusal is all that significant, given what appears to be a strong tendency among the conservative justices to reign in the administrative state:

Justice Ketanji Brown Jackson recused herself because she heard arguments in this case when she was on the D.C. Circuit. Jackson did not participate in that court’s final opinion, ...

The case involves Loper Bright Enterprises, a family‐​owned herring fishing company that operates in New England waters. A National Marine Fisheries Service regulation requires that herring fishing boats allow an additional person on board to serve as a monitor, tracking compliance with federal regulations. The monitor’s salary must be paid by the fishing company being monitored, reducing fishing profits in a business where margins are tight.

…

The Biden administration had urged the Supreme Court not to take up the case in an amicus brief, arguing it is an unsuitable vehicle in which to modify or overrule Chevron.

So, there’s the issue, front and center: Is this a proper case in which to modify or overrule Chevron? It seems clear that at least several justices think that this is the right case.

“The Supreme Court has an opportunity to correct one of the most consequential judicial errors in a generation. Chevron deference has proven corrosive to the American system of checks and balances and directly contributed to an unaccountable executive branch, overbearing bureaucracy, and runaway regulation,” Cause of Action Institute counsel Ryan Mulvey said in a statement obtained by National Review. Counsel of record Paul Clement concurred and said: “We look forward to our day in court.”

It’s very much worth noting that Paul Clement will be arguing the case before the Court. Clement is probably the rock star of all conservative appellate lawyers—read about him at his Wikipedia page:

Paul Drew Clement (born June 24, 1966) is an American lawyer who served as U.S. Solicitor General from 2004 to 2008 and is known for his advocacy before the U.S. Supreme Court. He established his own law firm, Clement & Murphy, in 2022 after leaving Kirkland & Ellis, following that firm’s decision to end its Second Amendment work. …

Here’s a link to a list of the cases he has argued before the SCOTUS. Note that among the most recent cases he has argued before the Court were the Little Sisters of the Poor case as well as the Bruen 2A case. Overall, looking down the list, and granting that he has represented a variety of clients, he appears to have a strong record of success in admin law and religious freedom cases.