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Notes -
Here's Chevron's overruling. The last cases of the term should drop today, I believe.
Summary:
Chevron, which says that agencies must be deferred to by courts, is gone, 6-3. Chevron is foundational to much of administrative law; this is a big deal.
Roberts, writing for the court, justifies it in large part because Chevron seems to differ from what is commanded in the Administrative Procedure Act.
Thomas argues that it violates separation of powers, in that it is the judiciary, not the executive, who has the right to judgment; Chevron violates that.
Gorsuch argues that it conflicts with principles of judicial interpretation, and so principles of stare decisis (he takes a fairly different view of stare decisis from some other members of the court, though similar to Thomas).
Kagan dissents, arguing that it is a good default judgment when one comes to ambiguities in the text, is compatible with the APA, and usually reflects Congress's will. She sees this as a power grab by the Court.
Loper Bright v. Raimondo
6-3 (or 6-2), overturning Chevron, standard lineup. Roberts writes, Thomas and Gorsuch each write concurrences, and Kagan dissents. Jackson recused herself for Loper Bright, but was present for Relentless.
Chevron overruled.
What is Chevron Deference? In Chevron, in 1976, the supreme court ruled that a two-step process is used in interpreting ambiguous provisions. First, they check whether "Congress has directly spoken to the precise question at issue," then, if not (that is, if it is silent or ambiguous), they defer to an agency if it "is based on a permissible construction of the statute."
We have two cases here, both related to the Magnuson-Stevens Fishery Conservation and Management Act. (I'm sad they made the main case Loper-Bright rather than Relentless, because the name is less cool.) But I won't bother to describe the details, because I'd have to reread it, and they do not matter; the court only took the case to decide whether to overturn Chevron, and aside from the initial presentation of the origin of the cases, the opinions dwell entirely on Chevron, there is not further reference to the details.
Roberts opens the discussion of the merits with reference to Article III of the Constitution. It gives "the responsibility and power" to judge cases and controversies to the federal judiciary. The framers recognized that things would be unclear, and judges would clarify. And it was proper to the courts to interpret the laws—theirs is judgment, unlike the legislature's will, or executive's force. And this was confirmed in Marbury v. Madison. At the same time, the court has long recognized that exercising judgment often involves respecting the interpretations of the executive branch. In an 1827 case, they explained that "in the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provision into effect is entitled to a very great respect." This was especially the case when the interpretation of the Executive Branch was from the beginning of the statute, and remained consistent. In 1878, it said, it gave "the most respectful consideration" to executive branch interpretations because "the officers concerned were usually able men, and masters of the subject who were not unfrequently the draftsmen of the laws they were afterwards called up to interpret." But this was only giving respect; the judges were not bound.
Following the New Deal, there was much more administration. "During this period, the Corut often treated agency determinations of fact as binding upon the courts" provided there was evidence to support them. But they did not defer in questions of law. In Skidmore v. Swift, they said that "interpretations and opinions" of the relevant agency "made in pursuance of official duty" and "based upon specialized experience" "constituted a body of experience and informed judgment to which courts and litigants could properly resort for guidance," even on legal questions. But the weight of that depended on the justification: is it thorough, with valid reasoning, consistent, and so forth. It can be persuasive, but not controlling, in Skidmore. Sometimes the Court would be deferential, as when in Gray v. Powell, Congress had specifically given the agency the power to determine what a coal "producer" was. Likewise, in NLRB v. Hearst "employee" was assigned to the NLRB, and the Court merely was to assess whether the NLRB's determination had warrant, and a reasonable basis in law. But these were exclusively about fact-bound determinations, not matters of law. And in Hearst the court said that questions of statutory interpretation are undoubtedly for the courts to resolve. The courts, following, were not consistent in reviewing deferentially, even in matters of fact. Often they just interpreted and applied as they saw it. And so this should not be read as being the Chevron deference rule. In fact, in 1946, just after the previous cases, Congress codified that courts must "decide all relevant questions of law," in the APA.
The APA was enacted as "a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices." Among other things, the APA discusses judicial review, directing that the court "shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." They are to "hold unlawful and set aside agency action, findings, and conclusions found to be…not in accordance with law." And so it codifies the basic principle that courts judge. Its lack of reference to deference is important, because it does mandate defernce in factfinding, and so where deference is appropriate was contemplated in the act. The legislative history confirms that courts "rather than agencies" are to judge questions of law, as per both the House and Senate Reports.
The APA, then, incorporates the traditional understanding, that courts must exercise independent judgment in determining the meaning of statutes. The courts may seek aid from the relevant bodies, as per Skidmore. In some cases, the conclusion may be that the agency was given discretion. Sometimes this is expressly given, other times the agency may work out details, or regulate under a flexible word, like "appropriate." When the law itself delegates discretion, the court interprets it by recognizing that that delegation is intended, fixing boundaries to that discretion, and checking that the agency made reasoned decisions within those boundaries.
Chevron arose in 1984, addressing whether "all of the pollution-emitting devices within the same industrial grouping" could be treated as a single "stationary source." SCOTUS articulated the now commonly used, two-step rule: (1) check whether Congress spoke to it directly, and (2) if not, check if the agency interpretation was permissible, and if so, defer. It accordingly upheld the interpretation. No acknowledgment of the APA or a doctrinal shift was made. Chevron was not recognized for some time, but was, after a few years, being cited routinely.
Chevron conflicts with the APA's command that the court "decide all relevant questions of law" and "interpret statutory provisions," in commanding that courts are bound to give deference to agencies. This is the case even when there's precedent the other way. It cannot be reconciled by presuming that ambiguities are implicit delegations—while some presumptions are useful for statutes, presumptions are proper "to the extent the approximate reality", and in general, ambiguities and delegations are not the same. Just because Congress did not think of something does not mean that it is intended that an agency resolve that. In other circumstances where ambiguities occur, they are not delegations; courts just have to do their best to work out the single best meaning. The same should happen here. And the proper rule for reading a statute is not to seek a permissible reading, but the best one. Agencies also have no "no special competence" in resolving statutory ambiguities.
The Government argues that they are intended to defer, because agencies have expertise. But often ambiguities are not about technical subject matter, but Chevron would nevertheless give it to the agency. But even when they are technical, it does not mean that Congress gave them authority to interpret. In many other non-agency cases, courts already have to interpret technical matters; and they do so with the help of the parties and amici expositing the matters, with their experience at the disposal of the court. And agency interpretations can still be useful, even if they cannot bind. (Citing a case from the year before Chevron). And so delegating is not necessary to ensure that decisions are "well informed by subject matter expertise." The government argues that it promotes uniformity, but desire for a uniform construction also fails to justify Chevron. Judges interpret it differently. And it is not good to impose uniformity, when that interpretation is uniformly wrong. Rather, follow what Congress enacted. The government further argues that interpretation of ambiguity in statutes amounts to policymaking, and so does not befit the courts. Roberts agrees that policymaking is meant to be left to "political actors." But resolution of statutory ambiguities involves legal interpretation; it is not suddenly policymaking because an agency exists. Judges are to judge without regard to policy preferences. Congress can confer discretionary authority to agencies, "subject to constitutional limits," (I'm pretty curious how much negotiation went into that clause.) in which case courts identify, police the boundaries, and ensure that they exercise their discretion consistent with the APA. Chevron prevents judging, not merely making policy.
Chevron's justification is "a fiction," so the court has since added several limitations on Chevron, to reduce it: "step zero" limits it, in effect, to notice-and-comment rulemaking. But even there, deference is not warranted "where the regulation is 'procedurally defective." Or, if the issue is one of "deep economic and political significance," as then Congress would be presumed to have mentioned it expressly, if it wanted to give the power. It further does not apply to "agency interpretations of judicial review provisions," or statutory schemes not administered by the agency in question. Some have skipped Chevron, or declined to apply steps. SCOTUS has not deferred under Chevron since 2016.
Turning to stare decisis, they should get rid of it. Stare decisis considers the quality of reasoning, the workability, and reliance on it. Each favors scrapping Chevron. Chevron did not consider the APA. Its flaws were apparent, since it has had to be repeatedly limited and "launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning." It's unworkable, as it's ambiguous what exactly ambiguity is. The dissent proves the point, as contrary to Roberts, who thinks that there is a single best meaning, the dissent thinks that Chevron applies when Congress has left an ambiguity or gap. So the court must give up early on interpretation before it finds the best meaning, but there's no clear guideline for how early, exactly. The court's attempts to clarify have added to the unworkability, "transforming the original two-step into a dizzying breakdance," and continues to have more questions about its boundaries, pointing to Cargill v. Garland, the bump stock case this year (May the government waive it? Does it apply to criminal penalties? What about lenity?) And so it is an impediment to "the basic judicial task of saying what the law is." It also is not a stable rule fostering reliance: courts have revised it several times. And in its application, it seriously harms reliance, as revisions in interpretation allow agencies to change their positions repeatedly. And so it undermines the principles stare decisis is meant to promote. They should correct their mistake. Roberts is careful to note that this does not call into question cases based upon Chevron; stare decisis still holds for those.
Thomas writes to note that it violates the separation of powers. (He adds that he agrees with the "lion's share" of Gorsuch's concurrence.) "Chevron compels judges to abdicate their Article III 'judicial power'." But they are Constitutionally required to exercise it. It also allows the executive branch to exercise power not given to it. The executive branch has only the executive power. Chevron allows them to exercise judicial power in interpretation. If you view it rather as letting agencies set policy, then that gives it legislative power. That, too, is not legitimate. Overruling it restores the separation of powers, in this respect.
Gorsuch has a lengthier concurrence, connecting to stare decisis. Gorsuch opens by saying that perceptions of "common law judge" as, judges of the past, able to make new legal rules, and of stare decisis as strictly binding, are both wrong. Common law judges were not understood to be allowed to make new law. Rather, they were examining pre-existing legal systems of the once-fractured England, and applying legal principles common to England and Englishmen generally. Hence, the goal was to find the law, not make it. It bound the parties in that case, but not society at large. Further, past decisions did not bind future judges. They could be given weight, as evidence of the law, but that weight could vary. Former judges were understood to be able to err, and in that case, should be correct. A single precedent was not of overwhelming weight. They mattered more if there were many such precedents, as that was stronger evidence of the meaning of the law. Over time, discarding aberrations, the common law would "work itself pure." Further, different parts of decisions had different weights—the essential reading warranted more attention than stray comments. The latter could be some evidence, but should not be treated "as a serious and deliberate opinion." Additionally, the limits of the adversarial process needed consideration, as not every possible argument was considered.
Gorsuch then turns to article III. He thinks common law "informed the nature" of the "judicial power" vested in federal courts. Other provisions of the constitution present the same understanding. Judges and their precedents could not "repeal or alter" the constitution or laws, per Madison. The opinion regarded the parties. It was only evidence of the proper construction of the law; it was not binding in future disputes. Madison says that judicial rulings "repeatedly confirmed" would be better evidence of the law's meaning than isolated ones. Jefferson thought it would take "numerous decisions" to settle the meaning of statutes. And not everything in a prior decision should receive equal weight. Views beyond the case at hand, for example, should not control, but may be respected. Lincoln presented these views against Douglas. Douglas thought that a single decision of the Supreme Court definitively resolved an issue, for everyone, and those who held otherwise "aimed a deadly blow to our whole Republican system of government." But Lincoln (who Gorsuch sides with), while accepting that they determine the rights of the parties, did not think single judicial decisions settled issues, especially when they depart from the Constitution. Some of these points continued to be echoed afterwards. Majority opinions for some time were written alone, and without consultation by the other justices, because they were understood to resolve it only for the parties.
There are, then, three lessons. First, past decisions may bind the parties, but it does not provide SCOTUS to depart from what the Constitution or the laws of the US say. Per the Constitution, they must amend them or pass legislation through the democratic processes. Hence why the Court has often said the stare decisis is not an inexorable command. The Court has stressed the importance of correcting errors of constitutional interpretation, as they con only otherwise be corrected through amendments. It has been less willing in statutes, but even there has overruled longstanding decisions.
Gorsuch notes that under the Warren and Burger courts, it would overrule about three cases per term, many of them important. More recently they have only overruled one or two per term.
Secondly, while judicial decisions may not supersede, they do merit respect. Precedent can serve to pass down wisdom. The weight afforded that precedent may depend on several features. First, reasoning, as the primary power of the precedent is in persuasion, and poorly reasoned cases do not provide good evidence of the law's meaning. Second, consistency with other decisions, as it is more likely to be correct when it is of a piece with other law, rather than unmoored from it. Workability and reliance are usually not reason enough to stick to things on their own—there is almost always some group that wants to keep things as they are—but they can serve to point to clues that some decision "is right in ways not immediately obvious to the individual judge." The lesson, then, is that the judge should not be guided solely by his own impression, but must "self-consciously test his views against those who have come before, open to the possibility that a precedent might be correct in ways not initially apparent."
Third, judicial opinions should not be read like statutes. Different facts and legal arguments may change the outcome. Stray asides will occur, but cannot control judgment. Opinions should not be combed through. Stare decisis is a tool of judicial humility, not hubris.
Turning to Chevron. Each of those three lessons is relevant.
First, Chevron deference contravenes the law passed in the Administrative Procedure Act. As Roberts had discussed, they are directed to "decide questions of law," and "interpret constitutional and statutory provisions." But under Chevron, they abdicate much of that responsibility. Agencies decide, and may change their mind. Chevron did not bother to cite the APA. It depends on a "fictionalized" statement of legislative desire, in supposing that Congress wishes to delegate, even when it has given no indication of that (citing Kagan's work, before she was a justice.) Its proponents see that as a good policy judgment, but judges have no right to elevate their own fictions above law. Some (pointing to Kagan's opinion) may think that the APA decides poorly in arranging judgment, but it is Congress's opinion that should control, not theirs. And so this would violate the first lesson, in that they need the humility to yield to the law. (A footnote: the dissent suggests the APA allows for Chevron, citing "the finest administrative law scholars," but the APA does not command deference to law professors. And the list of scholars is not complete, so he adds Breyer, who admits that it conflicts with the APA (yes, the one who became a left-leaning supreme court justice), and Kagan's reference to it being fictionalized. This is hilarious. Always read the footnotes.)
From lesson two: stare decisis requires careful testing against work of predecessors. This humility counsels to remember that precedents that are more broadly endorsed over more time, with more coherence with overall law, are entitled to greater consideration than those that are not. Their predecessors considered interpretation of the law peculiar to the courts, from the time of the founding of the Nation. See, for example, Marbury v. Madison. Court's have been willing to give great respect to contemporaneous and consistent views of coordinate branches about the meaning of a statute. But that did not entail deference. It was not bound. The dissent points to a few cases in the 1940s, in which, Gorsuch admits, the Court "toyed with a form of deference akin to Chevron, at least for so-called mixed questions of law and fact." E.g. Gray, Hearst. But that did not last, as in Skidmore the Court returned to the old path. They expressly rejected a rule like Chevron. Chevron is a break from decisions, not a continuation, and nearly defied them.
Additionally, it does not fit well with other portions of law. For example, after abuses in the colonial era, the Constitution attempted to ensure judicial independence under various provisions. Chevron undermines that, but preventing judges from exercising judicial power, forcing them to abandon the best reading, and repeatedly changing it, guaranteeing systemic bias in favor of whoever holds executive power. It undermines also the due process principle that no one may be a judge in their own case. Further, construing statutes as a reasonable reader would have read them when the law was made ("textualism") is traditional, confining judges to lawfinding, not making, and serves the due process principle of fair notice. Judges could not simply change out meanings as the meanings of words changed, without legislative revisions, or the people would be "slaves to their magistrates." But this does the same constantly changing the meaning and revising the law, except with bureaucrats rather than magistrates. It further conflicts with lenity: that ambiguities in penal laws should be against the government, and in favor of individuals. This serves to safeguard liberty, and strengthen the separation of power, but putting punishment more squarely apart from the judicial deparment. But under Chevron, parties often use ambiguities to penalize. Overall, this transfers powers to Article II, tilts justice to the most powerful, legal demands change frequently without corresponding changes in law, and people must guess about their legal rights. All this is a sign that a wrong turn has been made. (Footnote: the dissent characterizes it as a canon of construction or a presumption, and so it fits with law, but presumptions and canons are usually older than the United States, and many protect the Constitution, like the federalism canon presuming that federal statutes do not preempt state laws, or the presumption against retroactivity protecting the Constitution's ban on ex post facto laws. But Chevron undermines the Constitution's promise of an independent judge, and conflicts with the previously listed host of legal presumptions.)
Workability and reliance also serve to show that it does not comport with the "historic tide of judicial practice" but is an "aberrational mistake." Chevron has had to be supplemented so many times that it cannot be agreed how many steps it requires. In step zero, Mead said that, before deciding whether Chevron applies, courts must decide whether Congress meant to delegate authority to interpret. But when should that be? (I don't quite follow the complaint that follows.) Mead's test proved also to be indeterminate, and has often been ignored. In step one, it is unclear when it is ambiguous or not. In step two, there is disagreement when interpretation is reasonable, but wildly different standards of reasonability there are possible, and in use (he cites Kavanaugh, before he became a justice). In the cases before the court, as they worked their way up to them, some thought that the act was ambiguous, and the agency's regulation permissible. Some thought it unambiguous, prohibiting the rule. Some others thought there was "clear textual support," but would not say which step of Chevron that was due to.
With regard to reliance, "the whole point of Chevron deference is to upset them." Executive officials can change the interpretation at any time. Individuals can never be sure of their legal rights and duties. In Brand X, during Bush's administration, they allowed a rule to change; the same rule was changed under Obama, Trump, and Biden—four changes total, within twenty years. This hurts reliance. This especially hurts ordinary people, not large entities with lobbyists persuading changes of the rules, and lawyers keeping track of current requirements. Gorsuch cites two opinions that had come his way of people hurt by instances of Chevron, the latter of which involved a change in law, as well as other opinions in other courts to similar effect. The Government acknowledges that Chevron is heavily in favor of the government, against many individuals. But it thinks that it is too fundamental and important to undo, setting ground rules. But the proper ground rules are the Constitution, the APA, and precedents, not judge-made fictions.
Onto the third lesson (recall: judicial opinions are not like statutes). In Chevron itself, many of the cases cited supported respectful consideration, not deference. But the opinion itself spoke differently. But this was not the formulation of the government, so there was no adversarial engagement. The APA was not considered. It did not address contrary precedents. It "barely bothered" to justify the deference. The reasoning was not of high quality (as acknowledged by supporters). It was not immediately realized that it was to usher in a revolution. Of the 19 cases in the next term related to deference to statutory law, Chevron was cited once. But it was only with Scalia that it began to change, which he admitted was a sharp break from prior practice, but advocated as it would be easier to follow. But, in fact, it was not, and Scalia later recognized his error. (Gorsuch notes that some of Scalia's motivation was to deal with judges ignoring plain meaning and turning to legislative history and purposes. Scalia saw Chevron as likely to prevent that. But the better solution is returning to textualism, which he later championed, and was widely successful.) Other members have also decided that it was problematic, since, and it has not been applied by SCOTUS since 2016. This includes in technical matters. And so this cautions against "continued reliance on Chevron's stray and uncovered digression. The Supreme Court has over 500 volumes of cases; there is something out there supporting nearly anything. It is not their place to pick passages they like and demand perpetual obedience to them; that turns stare decisis from humility to judicial opportunism.
Respect for precedent "keeps the scale of justice even and steady," but does not require or tolerate refusal to correct mistakes. The Supreme Court had overruled itself by 1810. It overruled itself now less frequently than under Warren and Burger. Per Justice Douglas, the longest serving justice, in his experience, new supreme court justices would begin revering precedent, but would over time turn to the constitution, rather than predecessors' interpretations thereof, reexamining them. On the other hand, judges would issue "new and startling decisions," and demand they be followed under stare decisis. Chevron is such a revolution, masquerading as a status quo. This will just mean that courts will do as the Supreme Court has done since 2016, and as all courts did from the founding until the 1980s: resolve cases without systemic bias towards the government. And so proper respect for precedent counsels precisely the course that they are taking. "*Stare decisis'*s true lesson today is not that we are bound to respect Chevron's 'startling development,' but bound to inter it."
To the dissent. Kagan writes. She opens with a summary, framing Chevron as "almost obvious" and the majority as power-grabbing.
The problem, she opens, is that regulatory statutes often contain gaps. Sometimes they are intentional. Congress may have wanted the agency to fill it in, and figured the agency would know better than Congress. Or, Congress might disagree over some question, and so leave it to the agency. Other times, they might be accidents, whether from sloppy drafting, or the limits of language or foresight, or due to future, unforeseen issues. The matter may be too varying to be captured in its every detail.
Kagan gives some examples of the problems Chevron confronts:
All these are ambiguous, and not settled by Congress. There is no "best meaning." So who decides? The presumption, or default rule, should be agencies, as the court has long thought. (Kagan notes that presumptions like this are common. For example, with the presumption against extraterritoriality, the Court assumes Congress means statutes to apply only within the United States, unless Congress makes the opposite clear. Likewise, presumptions exist against retroactivity, or repeal by implication. In all these, Congress legislates against that stable background rule, and so they are reliable guesses as to legislative intent.)
Why might agencies be deciding be better? First, they often know more about the subject matter. See the protein example, where judges might not even know what it means, or the geographic region example, where judges might know the most relevant and important senses in which regions might or might not be distinct. With their expertise, agencies could better decide.
Second, the agencies would better know how a "complex regulatory regime" functions, and what is needed. In the region example, in the case of squirrels, the region could consider other examples. Kagan cites this as comparable to common law (no doubt with Gorsuch's concurrence in mind) making better decisions after seeing variations on a theme. Or in Medicare, considering different approaches will lead to a better understanding of what makes practical sense.
Third, the reflect that resolving statutory ambiguities is often a question of policy. That is plain from the Grand Canyon example; "substantial restoration" is clearly meant to be a policy decision, not one where judges determine the specified number of flights. Or Chevron's "stationary source" requires reconciling competing interests.
Deference is not always appropriate. The court has fine-tuned it to strip out cases where there is no reason to prefer the agency. These are not a flaw in the scheme, contra the majority's presentation. It makes sense not to apply it where it is not the relevant agency, or did not use its rulemaking authority, or in extraordinary cases of vast significance. Such restrictions "give interpretative primacy to the agency when—but only when—it is acting, as Congress specified, in the heartland of its delegated authority."
That framework reflects sensitivity to the roles of the branches: where Congress has spoken, only its judgments matter, and courts decide that. When that is not the case, it is more fitting if the agency does that, for the reasons above. "The court does not insert itself into an agency's expertise-driven, policy-laden functions."
The majority responds, unconvincingly (she says), that agencies have no special competence in resolving ambiguities in regulatory statutes. But deference only applies to fill statutory silence. The courts do not have special competence in determining questions of statutory interpretation like those listed in the examples given—agencies do. Secondly, they complain that gaps do not necessarily indicate congressional intent that agencies should decide. Kagan agrees that that isn't necessary, but Chevron is a presumption, what the default is. And this is a better default, because of the reasoning above. And even though many ambiguities are unintentional, it would still want the agency. And if Congress would do otherwise, it need only say so, but it has only twice (as per her knowledge), in hundreds of statutes, done so.
The majority mostly argues from the APA. But the APA does not resolve the Chevron question, as it does it is indeterminate on the matter. It does not provide any standard by which the court should review (deferential versus de novo), merely that it should. (This applies also to the legislative history.) In other contexts it specifies standards of review—deferential, with respect to fact-finding and policy-making—but here it does not. And within one specific portion, it refers to de novo review.
Most of the administrative law scholars of the time thought that the APA allowed deference: Jaffe, for example, says that courts should check if there is discretion, and defer if reasonable, which looks not far from Chevron. The Supreme Court gave no indication that the APA rejected agency interpretation, even though it did not always give the deference itself.
Kagan argues that 706 was generally understood to display the state of law at the time regarding judicial review, but they were, shortly preceding the APA fairly deferential. And so the relevant standard for interpreting it is that time period, not the overall backdrop of the nation's history. In Gray, widely considered the leading case on such interpretations, it deferred to the agency on the term "producer." In Hearst, they deferred on the term "employee." She rejects the majorities "taking a single stray sentence from Hearst to suggest that both Hearst and Gray stand for the opposite of what they actually do." So then the statute would allow for deference. She notes that the majority first seem to distinguish between purely legal and mixed. She'd be glad if they confined it to the purely legal, but does not expect that they mean it so. Often terms are defined through specific cases. (E.g. are newsboys employees?) And so the majority's distinction does not make sense; if it defers on whether newsboys are employees, it defers on what "employee" means.
Kagan also argues that the Court's inconsistency in applying deference would mean that 706 could not be argued to prohibit deference—it was understood (as the majority agrees) to represent prevailing law. So today's decision is groundless.
Abandoning it subverts stare decisis. This decision "will cause a massive shock to the legal system, casting doubt on many settled constructions of statutes and threatening the interests of many parties who have relied on them for years."
Chevron is entitled to particularly strong stare decisis because Congress remains free to change it, unlike in constitutional cases, and Congress has not done so. It could have abolished it across the board by amending the APA, which it has not done, or more narrowly in specific laws, which it has hardly ever done. Second, it is much more than a single decision, but has been upheld by the Supreme Court over 70 times, and cited by federal counts over 18000 times. It is "as embedded as embedded gets in the law." The majority not using it since 2016 was merely in preparation not to use it, and so making up its own justification for its overturning; she thinks this a mockery of stare decisis.
She rejects the claim of unworkability. While, sure, judges disagree on ambiguity, there are other cases where there are rules about ambiguity: in contract law, you rule against the drafter in ambiguous cases; in lenity, you rule in favor of criminal defendants. There are numerous other cases. Chevron actually, per studies, increases agreement between judges. And as to the second argument, about needing all these exceptions—well, there aren't that many, and they aren't hard anyway, in ordinary cases.
The majority's alternative, on the other hand, isn't easy: judges who argue about Chevron's "ambiguity" will definitely disagree about what exactly applying Skidmore's "respect" means. And there are complexities, requiring instance-by-instance resolution, in applying flexible words like "appropriate," which is not at all rare.
And the strongest stare decisis factor is against overturning Chevron: it would be a massive "jolt to the legal system." Congress and agencies have depended on it, and presupposed that statutory ambiguities were to be resolved by the agencies. She does not think the majority's alleviation of the problem that decisions held as reasonable under Chevron not being overruled for that is good, but insufficient. Many such determinations were never challenged. Courts will undoubtedly come up with "special justifications" to bring it up.
With that quote of Chevron, Kagan opens her conclusion. She poses the majority as not respecting Congress' judgment. As giving courts the power to make policy calls, including weighing competing goods. Putting them at the "apex of the administrative process" in every context. Courts will command federal regulation everywhere, which is not what Congress gave them. And all this involves disrespecting precedent, without special reason, and producing especially large disruption. And this is not a one-off in its treatment of agencies, see SEC v. Jarkesy.
My thoughts:
I thought Roberts was better in his interpretation of the APA, though, looking at the text of it, it requires a little care. I don't think Kagan's right on the reference to de novo in it; that does seem to be the baseline there; and her interpretation of the legislative history seems wrong. I think the majority presents Hearst fairly, as allowing deference in fact, but not in law. Kagan's wrong to suggest otherwise. Kagan is right that there are often genuine ambiguities; I think the majority left enough room for treating the deliberate ones as delegation. She's also right that effects will be sweeping. We'll see if it shows up in the media in coming years. I wonder if Kagan should be considered correct with regard to statutes formulated after a theory of deference was considered established, at least in certain domains? As then Congress would have expected ambiguities to be treated with deference. Overall, I'm with the majority. But Kagan reads as significantly more serious than, for example, Sotomayor dissents seem to. Gorsuch and Thomas seemed generally correct in their interpretation of history, though some of their prescriptions would be pretty radical.
Is this a fair thought experiment for reframing the principles behind the Chevron decision in way that might change how opponents are predisposed to think about it?
Or does this analogy not map very well to the same arguments?
Given my complaints about the capricious and at times outright malicious behavior of the ATF, I endorse this analogy.
Furthermore, it's barely an analogy. The ATF, who are federal law enforcement, love to invent novel rules on the fly and switch to a new interpretation of the rules whenever it pleases them.
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I wrote a bit about my frustration with this framing in another spot and I think the commentary applies here:
For a question like, "When does an amino acid chain polymer count as a protein?", I do not expect that a federal judge will be particularly knowledgeable on the matter. What I do expect is that reasonable people can differ and that the very existence of litigation on such a question suggests that there is in fact a subject matter expert that disagrees. The FDA, its staff, and its attorneys are not actually neutral truthseekers that should be deferred to - they're one party to litigation in which an expert thinks they're wrong. In overruling Chevron, the Court isn't saying that judges themselves are better experts than the FDA staffers, they're saying that the FDA staffers are not entitled to preferential treatment in an argument against a litigant, that they must make their argument in a way that a neutral third party finds compelling rather than just saying, "I am the science" with no recourse for their opposition. Chevron was always an absurd dereliction of duty and in deferring to agencies effectively granted them an arbitrary power level as long as they could muddy the waters enough to avoid clarity.
My beef with this is that some Congressional statutes are simply so poorly drafted that a neutral third party doesn't really have any solid basis on which to evaluate those arguments. To be more precise, this isn't about evaluating arguments for or against a policy or interpretation. This is about arguments about the meaning of the law (statutory construction, in fancy words). And an intellectually honest neutral third party might at some point throw their hands up and say that the law isn't written clearly enough to decide.
Of course, that's not an option in a court case. The case has to be resolved, even if what Congress wrote is vague, uninterpretable or even self-contradictory nonsense.
And for what it's worth, I do agree that Chevron was wrong. But it's not such a rosy future as "neutral third parties will now just evaluate arguments on statutory construction". This decision (rightly) forces Congress to specify clearly what it intends, but any measure of past experience shows that is it not up to the task.
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It also ignores that many cases don’t require factual knowledge but are merely policy choices made by the agency (ie legislating).
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Right. Roberts sort of says that (that the competing parties will have the expertise needed) on pages 24-25.
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To me, this was always the only issue. I mean yes, separation of powers, but also just plain reading of statutes.
Courts can't abdicate responsibility to interpret law unless Congress has set up some alternate arrangement, and in many cases the Constitution itself defines what cases the Courts MUST hear, which cases they MAY hear, and to what extent Congress can create alternative setups (such as immigration courts) that pull the duty of statutory interpretation away from the Article III Courts.
I wonder how SCOTUS would handle it if Congress explicitly went in and changed the APA to more-or-less codify the Chevron Deference standard?
But even Chevron (for all its ills, and I repeat that I think it was wrong) said that if the statute is unambiguous upon a plain reading that's the end of the inquiry.
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This was my immediate first question. What if Congress looks at what happens, writes a new bill fixing or superseding the APA that more or less is designed to re-establish what was until recently the status quo with better language reflecting those tradeoffs? Would the SC still have a fundamental, role-of-the-courts problem with that new bill? Or did enough of the case depend on the APA that the SC would sit back and go, nope, looks like everything is fine, proceed as before!
From what I gather, everyone but Thomas would be on board, right? This would make me feel a fair amount better in that Congress can easily (ha!) change it up if this creates a massive nightmare backlog of legal cases for judges as I expect.
I think this would run into the non-delegation doctrine. Congress can grant more authority to agencies in any specific case that would have been covered by Chevron, but if they try to make a law which says that if Congress doesn't say otherwise, the agencies get to make rules in general, the court seems likely to balk.
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Some members might reject it anyway (e.g. Thomas), but it would hold sway with enough to stay law, I imagine.
The Constitution very much grants Congress the power to establish lower courts with special functions, and define the rules those courts operate under.
I suspect that even Thomas might accept an unambiguous law which clearly delineates that the review of Administrative Judge rulings should be based on assuming the are valid on their face, unless contradicted by superior law.
But under the very strictest separation of powers examination, perhaps Congress isn't allowed to give up that much control over the creation of law, without an Amendment?
I think given how much power Congress has already given up to the executive without issue, it'd be hard to argue against this one. Then again, the devil is in the details.
I think some justices think that what's already been done is unconstitutional (for example, giving rulemaking authority). Yes, this is radical.
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