THE “CHEVRON DOCTRINE” IS DEAD
THE DOORS OF THE FEDERAL COURTS ARE ONCE AGAIN OPEN
In one of the most important cases SCOTUS decided this past term, a majority of the Court abandoned the “Chevron doctrine” which had closed the federal courts’ courthouse doors to parties arguing that federal agencies’ rulings were wrong. The “doctrine” allowed the deep state federal agencies to rule over Americans with their plethora of “regulations”, not legislation passed by Congress. Yet, this is still called by some a Republic?
The decision will, no doubt, give rise to a call for more federal courts to handle the additional cases that will be filed. The additional expense will be worth it for those whose lives have been affected in a negative way by some of the rulings of the deep state agencies which up to this time have had total control and could not be second-guessed.
The case involves fishermen located on the Eastern seaboard who are regulated by the The National Marine Fisheries Service (NMFS) that administers the Magnuson-Stevens Fishery Conservation and Management Act (MSA) under a delegation from the Secretary of Commerce concerning carrying onboard their vessels “monitors” who are to determine that they are not fishing too much (tongue in cheek). The question presented in this case is whether the government can require the fishermen to pay for the services. The agency, of course said it said it was entirely appropriate. So the fishermen appealed to the courts which held that under the “Chevon doctrine” they had to defer to the “expertise” of the agency so the lower federal courts dismissed the lawsuits. SCOTUS was then asked to reconsider the doctrine.
Chief Justice Roberts wrote the opinion in Loper Bright Enterprises v. Raimondo in which Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, joined. Justices Thomas and Gorsuch filed concurring opinions. Justice Kagan filed a dissenting opinion, in which Justice Sotomayor joined, and in which Justice Jackson joined as to part of the opinion.
A little history would help understand the case. Chief Justice Roberts explained:
Before 1976, unregulated foreign vessels dominated fishing in the international waters off the U. S. coast, which began just 12 nautical miles offshore. See, e.g., S. Rep. No. 94–459, pp. 2–3 (1975). Recognizing the resultant over-fishing and the need for sound management of fishery resources, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (MSA).
Plans developed under the act:
… For example … may “prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment,” §1853(b)(4); “reserve a portion of the allowable biological catch of the fishery for use in scientific research,” §1853(b)(11); and “prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery,” §1853(b)(14).
Relevant here, a plan may also require that “one or more observers be carried on board” domestic vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.”
Crucially, here:
… If NMFS determines that an observer is required, but declines to assign a Government-paid one, the vessel must contract with and pay for a Government-certified third-party observer. NMFS estimated that the cost of such an observer would be up to $710 per day, reducing annual returns to the vessel owner by up to 20 percent.
The Chief Justice said in the opinion explaining the doctrine:
Our Chevron doctrine requires courts to use a two-step framework to interpret statutes administered by federal agencies. After determining that a case satisfies the various preconditions we have set for Chevron to apply, a reviewing court must first assess “whether Congress has directly spoken to the precise question at issue.” Id., at 842. If, and only if, congressional intent is “clear,” that is the end of the inquiry. Ibid. But if the court determines that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court must, at Chevron’s second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.” Id., at 843.
Chief Justice Roberts outlines the considerations to be examined relevant to determining what federal agencies would be allowed to put into effect based on congressional enactment of statutes. He says:
Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear. Cognizant of the limits of human language and foresight, they anticipated that “[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, ”would be “more or less obscure and equivocal, until their meaning” was settled “by a series of particular discussions and adjudications.” The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison).
The Framers also envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” Id., No. 78, at 525 (A. Hamilton). Unlike the political branches, the courts would by design exercise “neither Force nor Will, but merely judgment.” Id., at 523. To ensure the “steady, upright and impartial administration of the laws,” the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches. Id., at 522; see id., at 522–524; Stern v. Marshall, 564 U. S. 462, 484 (2011).
Of course, our founders would never have dreamed we would have allowed the executive branch of the federal government to create so many administrative agencies with unelected officials who determine the “intent” of the legislation and pass regulations controlling our lives. In a Republic we are supposed to be ruled by the laws passed by our elected officials so we can “un-elect” them if we disagree with their legislative actions.
The Court continues with the understanding of the role of the judiciary with the following:
This Court embraced the Framers’ understanding of the judicial function early on. In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). And in the following decades, the Court understood “interpret[ing] the laws, in the last resort,” to be a “solemn duty” of the Judiciary. United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J., for the Court). When the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497, 515 (1840).
The Court also recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. For example, in Edwards’ Lessee v. Darby, 12 Wheat. 206 (1827), the Court explained that “[i]n 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 provisions into effect, is entitled to very great respect.” Id., at 210; see also United States v. Vowell, 5 Cranch 368, 372 (1809) (Marshall, C. J., for the Court).
Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. See Dickson, 15 Pet., at 161; United States v. Alabama Great Southern R. Co., 142 U. S. 615, 621 (1892); National Lead Co. v. United States, 252 U. S. 140, 145–146 (1920). That is because “the longstanding ‘practice of the government’ ”—like any other interpretive aid—“can inform [a court’s] determination of ‘what the law is.’ ” NLRB v. Noel Canning, 573 U. S. 513, 525 (2014) (first quoting McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); then quoting Marbury, 1 Cranch, at 177). The Court also gave “the most respectful consideration” to Executive Branch interpretations simply because “[t]he officers concerned [were] usually able men, and masters of the subject,” who were “[n]ot unfrequently . . . the draftsmen of the laws they [were] afterwards called upon to interpret.” United States v. Moore, 95 U. S. 760, 763 (1878); see also Jacobs v. Prichard, 223 U. S. 200, 214 (1912).
“Respect,” though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge “certainly would not be bound to adopt the construction given by the head of a department.” Decatur, 14 Pet., at 515; see also Burnet v. Chicago Portrait Co., 285 U. S. 1, 16 (1932). Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in cases where [a court’s] own judgment . . differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.” Dickson, 15 Pet., at 162.
Justice Roberts then discusses the “rapid expansion of the administrative process” and the allowance for administrative agencies, if proper procedures were followed to make “findings of fact”, however, questions of law were still for the courts to decide. The Court’s decisions involved what was called ” deferential review”.
Then the Court says the Administrative Procedures Act was enacted in 1946 by Congress:
“… as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U. S., at 644. It was the culmination of a “comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers.” Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670–671 (1986).
In addition to prescribing procedures for agency action, the APA delineates the basic contours of judicial review of such action. As relevant here, Section 706 directs that “[t]o the extent necessary to decision and when presented, the reviewing 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.” 5 U. S. C. §706. It further requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.” §706(2)(A).
Justice Roberts states the crux of the decision is:
The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA. [Administrative Procedure Act]
Justice Roberts then expansively discusses the application of the doctrine to several cases, the errors in the decision, the argument of the dissenting judges and says:
The dissent ends by quoting Chevron: “ ‘Judges are not experts in the field.’ ” Post, at 31 (quoting 467 U. S., at 865). That depends, of course, on what the “field” is. If it is legal interpretation, that has been, “emphatically,” “the province and duty of the judicial department” for at least 221 years. Marbury, 1 Cranch, at 177. The rest of the dissent’s selected epigraph is that judges “ ‘are not part of either political branch.’ ” Post, at 31 (quoting Chevron, 467 U. S., at 865). Indeed. Judges have always been expected to apply their “judgment” independent of the political branches when interpreting the laws those branches enact. The Federalist No. 78, at 523. And one of those laws, the APA, bars judges from disregarding that responsibility just because an Executive Branch agency views a statute differently.
Chief Justice Roberts continues with the decision saying:
Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.
Justice Thomas wrote a concurring opinion to express that:
… Chevron deference also violates our Constitution’s separation of powers, as I have previously explained at length. See Baldwin, 589 U. S., at ___–___ (dissenting opinion) (slip op., at 2–4); Michigan v. EPA, 576 U. S. 743, 761–763 (2015) (concurring opinion); see also Perez v. Mortgage Bankers Assn., 575 U. S. 92, 115–118 (2015) (opinion concurring in judgment). And, I agree with JUSTICE GORSUCH that we should not overlook Chevron’s constitutional defects in overruling it.* Post, at 15–20 (concurring opinion).
To provide “practical and real protections for individual liberty,” the Framers drafted a Constitution that divides the legislative, executive, and judicial powers between three branches of Government. Perez, 575 U. S., at 118 (opinion of THOMAS, J.). Chevron deference compromises this separation of powers in two ways. It curbs the judicial power afforded to courts, and simultaneously expands agencies’ executive power beyond constitutional limits.
Chevron compels judges to abdicate their Article III “judicial Power.” §1. “[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.” Perez, 575 U. S., at 119 (opinion of THOMAS, J.); accord, post, at 17–18 (opinion of GORSUCH, J.). The Framers understood that “legal texts . . . often contain ambiguities,” and that the judicial power included “the power to resolve these ambiguities over time.” Perez, 575 U. S., at 119 (opinion of THOMAS, J.); accord, ante, at 7–9. But, under Chevron, a judge must accept an agency’s interpretation of an ambiguous law, even if he thinks another interpretation is correct. Ante, at 19. Chevron deference thus prevents judges from exercising their independent judgment to resolve ambiguities. Baldwin, 589 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 3); see also Michigan, 576 U. S., at 761 (opinion of THOMAS, J.); see also Perez, 575 U. S., at 123 (opinion of THOMAS, J.). By tying a judge’s hands, Chevron prevents the Judiciary from serving as a constitutional check on the Executive. It allows “the Executive . . . to dictate the outcome of cases through erroneous interpretations.” Baldwin, 589 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 4); Michigan, 576 U. S., at 763, n. 1 (opinion of THOMAS, J.); see also Perez, 575 U. S., at 124 (opinion of THOMAS, J.). Because the judicial power requires judges to exercise their independent judgment, the deference that Chevron requires contravenes Article III’s mandate. Chevron deference also permits the Executive Branch to exercise powers not given to it. “When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.” Department of Transportation v. Association of American Railroads, 575 U. S. 43, 68 (2015) (THOMAS, J., concurring in judgment). Because the Constitution gives the Executive Branch only “[t]he executive Power,” executive agencies may constitutionally exercise only that power. Art. II, §1, cl. 1. But, Chevron gives agencies license to exercise judicial power. By allowing agencies to definitively interpret laws so long as they are ambiguous, Chevron “transfer[s]” the Judiciary’s “interpretive judgment to the agency.” Perez, 575 U. S., at 124 (opinion of THOMAS, J.); see also Baldwin, 589 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 4); Michigan, 576 U. S., at 761–762 (opinion of THOMAS, J.); post, at 18 (GORSUCH, J., concurring).
Justice Thomas continues:
Chevron deference was “not a harmless transfer of power.” Baldwin, 589 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 3). “The Constitution carefully imposes structural constraints on all three branches, and the exercise of power free of those accompanying restraints subverts the design of the Constitution’s ratifiers.” Ibid. In particular, the Founders envisioned that “the courts [would] check the Executive by applying the correct interpretation of the law.” Id., at ___ (slip op., at 4). Chevron was thus a fundamental disruption of our separation of powers. It improperly strips courts of judicial power by simultaneously increasing the power of executive agencies. By overruling Chevron, we restore this aspect of our separation of powers. To safeguard individual liberty, “[s]tructure is everything.” A. Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 Notre Dame L. Rev. 1417, 1418 (2008).
Although the Court finally ends our 40-year misadventure with Chevron deference, its more profound problems should not be overlooked. Regardless of what a statute says, the type of deference required by Chevron violates the Constitution.
Justice Gorsuch wrote a concurring opinion with an excellent discussion of a judge’s role in interpretation, the “common law” judge, and the proper applicability of “stare decisis”. Without extending this post, if you have an interest in these areas, I would invite you to read his entire opinion. [link at the end of the post]
Beginning the opinion Justice Gorsuch says:
In disputes between individuals and the government about the meaning of a federal law, federal courts have traditionally sought to offer independent judgments about “what the law is” without favor to either side. Marbury v. Madison, 1 Cranch 137, 177 (1803). Beginning in the mid1980s, however, this Court experimented with a radically different approach. Applying Chevron deference, judges began deferring to the views of executive agency officials about the meaning of federal statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). With time, the error of this approach became widely appreciated. So much so that this Court has refused to apply Chevron deference since 2016. Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding. I write separately to address why the proper application of the doctrine of stare decisis supports that course.
In a telling reference to my theme in these Substack posts and my book “The Tyrannical Rule Of The U.S. Supreme Court; How The Court Has Violated The Constitution”, Justice Gorsuch says:
Traditionally, as well, courts have sought to construe statutes as a reasonable reader would “when the law was made.” Blackstone 59; see United States v. Fisher, 2 Cranch 358, 386 (1805). Today, some call this “textualism.” But really it’s a very old idea, one that constrains judges to a lawfinding rather than lawmaking role by focusing their work on the statutory text, its linguistic context, and various canons of construction. In that way, textualism serves as an essential guardian of the due process promise of fair notice. If a judge could discard an old meaning and assign a new one to a law’s terms, all without any legislative revision, how could people ever be sure of the rules that bind them? New Prime Inc. v. Oliveira, 586 U. S. 105, 113 (2019). Were the rules otherwise, Blackstone warned, the people would be rendered “slaves to their magistrates.” 4 Blackstone 371.
I would rather have it called “originalism”. Justice Gorsuch continues:
Yet, replace “magistrates” with “bureaucrats,” and Blackstone’s fear becomes reality when courts employ Chevron deference. Whenever we confront an ambiguity in the law, judges do not seek to resolve it impartially according to the best evidence of the law’s original meaning. Instead, we resort to a far cruder heuristic: “The reasonable bureaucrat always wins.” And because the reasonable bureaucrat may change his mind yeartoyear and electiontoelection, the people can never know with certainty what new “interpretations” might be used against them. This “fluid” approach to statutory interpretation is “as much a trap for the innocent as the ancient laws of Caligula,” which were posted so high up on the walls and in print so small that ordinary people could never be sure what they required. United States v. Cardiff, 344 U. S. 174, 176 (1952).
Today, we can replace those “high and mighty” edicts with the CFRs (Code of Federal Regulations) that must be read carefully and in detail to understand their applicability and punishments if not followed. Of course, they are written by and enforced by un-elected bureaucrats not by your legislators. Even lawyers who practice in this “field of expertise” are often confused.
Justice Kagan wrote a dissenting opinion with Justice Sotomayor and Justice Jackson joining, stating:
For 40 years, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), has served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies. Under Chevron, a court uses all its normal interpretive tools to determine whether Congress has spoken to an issue. If the court finds Congress has done so, that is the end of the matter; the agency’s views make no difference. But if the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap, then a choice must be made. Who should give content to a statute when Congress’s instructions have run out? Should it be a court? Or should it be the agency Congress has charged with administering the statute? The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness. That rule has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.
And the rule is right. This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent.
Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court. Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not. And some present policy choices, including trade-offs between competing goods. Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy. And of course Congress has conferred on that expert, experienced, and politically accountable agency the authority to administer—to make rules about and otherwise implement—the statute giving rise to the ambiguity or gap. Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740–741 (1996).
Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion….
Justice Kagan justifies her position by stating:
Begin with the problem that gave rise to Chevron (and also to its older precursors): The regulatory statutes Congress passes often contain ambiguities and gaps. Sometimes they are intentional. Perhaps Congress “consciously desired” the administering agency to fill in aspects of the legislative scheme, believing that regulatory experts would be “in a better position” than legislators to do so. Chevron, 467 U. S., at 865. Or “perhaps Congress was unable to forge a coalition on either side” of a question, and the contending parties “decided to take their chances with” the agency’s resolution. Ibid. Sometimes, though, the gaps or ambiguities are what might be thought of as predictable accidents. They may be the result of sloppy drafting, a not infrequent legislative occurrence. Or they may arise from the well-known limits of language or foresight. Accord, ante, at 7, 22. “The subject matter” of a statutory provision may be too “specialized and varying” to “capture in its every detail.” Kisor, 588 U. S., at 566 (plurality opinion). Or the provision may give rise, years or decades down the road, to an issue the enacting Congress could not have anticipated. Whichever the case—whatever the reason—the result is to create uncertainty about some aspect of a provision’s meaning.
In other words, Justice Kagan apparently believes it is ok to allow the elected legislators to be intentionally vague in their language so an administrative agency might be able to expand its “field of expertise” to the disadvantage of the citizens who must comply. Sounds like the posting of the rules so high on the wall and in such small type that people could not make it out to determine how to follow them.
The remainder of Justice Kagan’s opinion supports the determinations being made by the administrative agency rather than it being the business of the courts.
CONCLUSION
This will cause a major shift in the way the public and administrative law attorneys approach their problems with the federal agencies with which many of them deal on a daily basis. An example has already occurred with respect to the liability of the United States Air Force for allowing PFAS (Per- and polyfluoroalkyl substances) to seep into the ground surrounding bases affecting the drinking water of land owners. Because of the abandonment of the Chevron doctrine the Air Force now claims it will approach the liability question differently. Read the story here One can only guess how the situation will result but without a doubt there will be additional federal lawsuits necessitating additional resources for the courts.
Another positive result that could occur is that we should demand that Congress write its legislation in language that is easily understood about what is covered by the laws being passed so we citizens can hope to understand what is meant and courts can find clear guidance for the rules that are “written in such small type and posted so high on the wall that is difficult to read”.
To read the entire opinion click here
Don
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