At the beginning of the year, after the U.S. Supreme Court decided to take up a case about fishing, many legal minds were concerned that a seemingly ordinary case could actually have pretty significant effects downstream. We wrote a blog describing why many predicted that the eventual ruling in Loper Bright Enterprises v. Raimondo could be the nail in the coffin for the longstanding but hotly-contested Chevron doctrine.
Our prediction has come true. SCOTUS has just issued a decision in Loper Bright that finally settled a debate that’s been simmering for almost half a century over the role of courts and federal agencies.
The Loper Bright Case
The facts of the case centered around a small fishing company called Loper Bright Enterprises, the named plaintiff in the eventual lawsuit. They were suing the government — “Raimondo” refers to Gina Raimondo, the federal Secretary of Commerce, who delegates the administration of the Magnuson-Stevens Fishery Act (MSA) to the National Marine Fisheries Service (NMFS) – for requiring fishermen to not only host “fish auditors” on their boats, but also to pay for them out of pocket at a pretty significant cost.
You can read a more in-depth summary of the facts of the Loper Bright case and the legal arguments in our earlier blog, but basically what you need to know is this: the MSA was unclear in its wording of the exact requirements of the fisherman’s obligations and who was to pay for the auditor. The fishing company, unsurprisingly, didn’t want to pay for it. Neither did the federal government.
The Chevron Doctrine
Under the Chevron doctrine, when statutes are unclear, courts defer to the relevant federal agency for its expertise on how to interpret the law. You can read more about the history of the Chevron doctrine and how it has since become commonplace in the operation of our federal government in our related blog.
Critics of Chevron see it as offending the principle of the Separation of Powers in multiple ways. First, it gives too much power to the executive branch (federal agencies), rather than keeping lawmaking power with Congress. Second, it takes away the job of interpreting the law from the judicial branch (courts) and gives that, too, to agencies. Plus, it runs the risk that agencies will interpret an ambiguous statute in a way that’s beneficial to them, often to the detriment of the “little guy,” like the fisheries in the Loper Bright case.
SCOTUS Ends the Contested Doctrine
The separation-of-powers arguments against Chevron deference can be abstract, but SCOTUS, in its decision from Thursday, was able to point to a more concrete reason: the Administrative Procedure Act (APA). This statute requires courts to exercise their independent judgment when deciding whether an agency has acted within its statutory authority. Writing for the majority, Chief Justice Roberts held that the practice of deferring interpretive authority to federal agencies violates the mandates of the APA. He overruled the Chevron doctrine and held that courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous.
The majority didn’t buy the common argument in favor of the Chevron doctrine, which is the assumption that by leaving ambiguities in the text of the statute, Congress has implicitly – some would even say intentionally – delegated the authority to resolve them to agencies.
First, the Court reasoned, we can’t assume that any given ambiguity in a statute is intentional. Many – maybe even most – ambiguities in statutes are likely unintentional.
Second, why should we assume that Congress meant for the agency, rather than a court, to clarify the statute? After all, there are lots of instances where a written law is unclear that do not involve an agency. In those cases, a court does not just declare that one party’s reading is “permissible.” Instead, the court uses the tools at its disposal to determine the best reading of the law and resolve the ambiguity in the text. It is the court that is obligated with the task of interpreting the ambiguous statute in those cases, so why should this obligation dissipate when agencies are involved? In cases where agencies are involved, there is still a “best reading,” which is the reading that the court would have reached if no agency were involved.
The majority points out that agencies don’t even have better competence to interpret statutes than courts do. In fact, it’s kind of always been the job of courts, not agencies, to practice statutory interpretation by using their independent legal judgment. And, according to the majority that’s how the Framers of the Constitution intended things to be. The majority was thus not convinced that just because an agency is involved, the case merits a different treatment where the agency gets the most say.
Was It a Separation of Powers Issue?
While the majority did not decide the case on the broader principle of separation of powers, the motivations underlying their interpretation of the APA were arguably based on that broader principle. The concurring opinion of Justice Thomas went further, making the broader assertion that Chevron is even more fundamentally offensive than the majority claims. Justice Thomas, agreeing with Justice Gorsuch’s concurring opinion, essentially reasoned that even if the APA didn’t exist, Chevron would fail under the Constitution in two ways: because it curbs the judicial power afforded to courts by the Constitution, and also because it expands agencies’ executive power beyond constitutional limits.
Justice Gorsuch Suggests They Are Just Making It Official
What about stare decisis? Stare decisis, you might recall, is the principle that the Supreme Court should be reluctant to overturn precedent that the public has relied upon, and that constantly changing the law is harmful.
Well, courts haven’t been consistently applying Chevron to the point where SCOTUS is convinced that there is a good argument on the grounds of stare decisis. The majority pointed out that, in the past eight years, the doctrine has been constantly tinkered with by SCOTUS. They also reasoned that the doctrine has for a while been seen as “unworkable,” among other reasons, because it is often simply difficult to determine whether or not a statue is ambiguous in the first place. “Unworkability” is one of the grounds on which SCOTUS can justifiably make an exception to stare decisis.
As Gorsuch wrote in his 33-page concurrence, the Court’s decision in Loper Bright is merely formalizing a pattern that courts have been doing for a while now: “Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretative rules that have guided federal courts since the Nation’s founding . . . all today’s decision means is that, going forward, federal courts will do exactly as this Court has since 2016, exactly as it did before the mid-1980s, and exactly as it had done since the founding: resolve cases and controversies without any systemic bias in the government’s favor.”
Dissent Raises Important Questions
Justice Kagan wrote a dissent, joined by Justices Sotomayor and Jackson, defending the Chevron doctrine because, in their opinion, it importantly effectuates legislative intent. They think that Congress knows that it cannot write perfectly complete statutes, meaning that regulatory laws will inevitably contain ambiguities. Someone has to resolve those ambiguities, and Congress would prefer that someone to be agencies, not courts; agencies have expertise in the subject matters that those statutes involve, whereas courts do not.
Though the Loper Bright majority emphasized that their new ruling intends to preserve a role for agencies in resolving statutory ambiguities, it will certainly be very diluted. Kagan and critics of the decision don’t buy their assurances that the ruling leaves room for meaningful agency guidance because agency interpretations may still be entitled to “respect” going forward. Kagan astutely observed, “If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides are not going to argue tomorrow about what ‘respect’ requires, I fear it will be gravely disappointed.”
And what about the work Chevron has done up through now? Although the majority assert that their decision would not call into question the many decisions that have relied on Chevron to uphold agency action, many – including Kagan – disagree. Are those cases still good law? Also, statutes passed and rules issues in the past 40 years reflect the expectation that Chevron would allocate a good deal of interpretive authority to agencies. Will they remain effective now that this authority has been stripped?
The decision may have answered a major question, but it’s raised a lot more.
Source: FINDLAW
July 2, 2024
