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'Wiggle Room'

Chevron Doctrine in Crosshairs, but Next SCOTUS Steps Are Hard to Predict

The U.S. Supreme Court is difficult to predict, but lawyers see reason to believe the court will use an upcoming case, Loper Bright Enterprises v. Raimondo, to clarify the status of the Chevron doctrine, legal experts told us. The doctrine underlies the authority of independent agencies like the FCC and the FTC. The court last week agreed to hear the maritime case (docket 22-451). The court hasn’t cited Chevron for several years, though it continues to be cited by lower courts.

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The major questions doctrine, as laid out in last year’s decision in West Virginia v. EPA (see 2206300066), is considered likely to play an increasingly important role in future decisions on actions by federal agencies like the FCC. In the 6-3 West Virginia decision, justices didn’t overrule the Chevron doctrine but appeared to further clamp down on agencies' ability to regulate without clear direction from Congress.

There are several possible outcomes to Loper, said Morrison Foerster’s Joseph Palmore, former assistant to the solicitor general and former deputy FCC general counsel. “The court could overrule Chevron,” he said: “It’s also possible that the court will leave Chevron in place but significantly narrow its application.” Loper should “provide an answer on Chevron’s status,” he said.

There is “a road map” for narrowing Chevron, Palmore said. In 2019, SCOTUS “chose not to overrule its decisions requiring deference to administrative interpretations of ambiguous regulations, but it did limit the circumstances when such deference would come into play,” he said: “We could see something like that in Loper. Whatever the outcome, the decision should provide needed clarity for litigants and lower courts. Chevron has been under a cloud for several years -- the court hasn’t overruled it but also has avoided citing it.”

Though it’s true SCOTUS hasn’t recently cited Chevron “and has deployed the major-questions doctrine aggressively,” lower courts, particularly the U.S. Court of Appeals for the District of Columbia Circuit, continue to rely on Chevron, said Daniel Deacon, assistant professor at the University of Michigan Law School. Loper is “an opportunity for the Supreme Court to tell those other courts to cut it out and police agency interpretations more aggressively, even in run-of-the-mill cases,” he said.

What the court will do is “anyone’s guess,” Deacon said. The question SCOTUS agreed to decide “gives it some wiggle room that would allow the court to narrow Chevron instead of overruling it, if that’s what a majority prefers,” he said. In 2019, the Court decided to narrow, rather than overrule, “a related deference doctrine” in Kisor v. Wilkie (see 1907300021), “and it’s possible it will go that route again,” he said. Justices Clarence Thomas and Neil Gorsuch “will want to go all out and overrule Chevron, so it’s really a question of how many will side with them and how many will be content to further cut back on it without overruling it,” he said. If the court doesn’t overrule Chevron, expect “a period of uncertainty while the lower courts figure out what that means,” Deacon said.

SCOTUS overturning Chevron is unlikely, “especially since it's not clear what would fill the void,” emailed Daniel Lyons, professor at Boston College of Law. More likely is a decision “narrowing the scope of what agencies can do when the statute is silent,” he said. In his dissent in the 2015 City of Arlington case (see 1501140036), Chief Justice John Roberts said “ambiguous statutory language is different than congressional silence on an issue, and the latter should not get Chevron deference,” Lyons said: “Arlington was an imperfect case to present that question, so my guess is this Chevron skeptic court may see this case as a chance to revisit that question.”

The Roberts court, “more than any other Supreme Court in history, uses its docket discretion to pick-and-choose cases that give it the power to revisit and overrule precedent,” emailed Tejas Narechania, assistant professor-University of California, Berkeley, School of Law. Since the court “has barely mentioned Chevron” since a 2016 decision “it may claim that the decision has been effectively abandoned, but I hope not,” he said.

Even if we think that the Supreme Court considers every case on its own docket to be a ‘major question,’ a dubious assertion itself, Chevron is a critically important aspect of how the appeals courts review agency decisions in more everyday run-of-the-mill cases,” Narechania said: “Chevron's approach preserves policy flexibility and political accountability, both of which are important values in administrative rulemaking.”

Lower courts do continue to apply Chevron but are increasingly willing to approach issues differently by finding no ambiguity or treating issues as involving major questions which thus don't necessarily implicate Chevron at all,” said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. The question the court certified has two halves -- one asking for "clarification" of Chevron and the second whether the decision should be overruled, he noted.

My best guess is that the politics of the court favor the less drastic result, for now,” Schwartzman said: “Watering it down will largely satisfy the needs of the business community as they mount regulatory challenges. That is the kind of approach the chief justice seems to favor, and he may well be able to get near unanimity for that outcome.”

SCOTUS could overturn Chevron, or could reinterpret it in a way that weakens Chevron deference, predicted Tech Freedom Internet Policy Counsel Corbin Barthold. Gorsuch previously argued for such a reinterpretation in a dissent 2022 in Buffington v. McDonough, he said. “We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts,” wrote Gorsuch. The court took a similar tack in a previous decision on Auer deference, the concept that courts should defer to regulatory agency interpretations of their own regulations, Barthold said. In that case, Kisor v. Wilkie, Justice Elena Kagan’s opinion didn’t overturn the Auer decision but instead created a test that narrowed its application. A SCOTUS opinion with a similar narrowing of Chevron deference could be more palatable to more justices than outright overturning Chevron, Barthold said.

If the doctrine is overturned, it would add extra ammunition to challenges against agency regulations but might not necessarily change agency behavior, Barthold said. He said the FTC’s recent string of antitrust losses is evidence federal agencies could stick with their existing plans even if their chances in court decrease. “I don't know if overturning Chevron is actually going to change much behavior,” Barthold said. “I'm kind of pessimistic about the courts’ ability to drive the ship of the administrative state.”