July 8, 2024
Loper Bright Enterprises v. Raimondo, 603 U.S. ___, No. 22-451 (June 28, 2024).
Response by Professor Richard Pierce
Geo. Wash. L. Rev. On the Docket (Oct. Term 2023)
Slip Opinion | SCOTUSblog
Loper Bright Enterprises v. Raimondo: Chevron is Dead; Long Live Skidmore
In its 1984 opinion in Chevron v. NRDC,1 the Supreme Court announced a new approach to judicial review of agency interpretations of agency-administered statutes. The two-part test the Court announced and applied in Chevron was more deferential to agencies than prior tests. The Loper Bright2 Court describes the test as follows:
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.” If, and only if, congressional intent is “clear,” that is the end of the inquiry. 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.”3
Chevron is one of the most cited cases in history. It has been cited in over 18,000 court opinions.4
The facts of the case before the Court in Loper Bright were irrelevant to its decision. The majority dutifully recites the facts, but no Justice pays any attention to the facts in their opinions. The Court granted the petition for writ of certiorari for the sole purpose of deciding whether to overrule Chevron, and the Justices debate that issue in the abstract with no reference to the facts of the case before the Court.
A six-Justice majority decides to overrule Chevron. The majority devotes much of its discussion to old opinions in which the Court discussed the appropriate role of courts in the process of statutory interpretation from a broad constitutional perspective.5 However, it bases its holding on its interpretation of section 706 of the 1946 Administrative Procedure Act (“APA”). That provision states:
To 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.6
The majority interprets that statutory provision to codify the traditional role of courts as the Court has characterized that role in its old constitutionally based opinions.7 The majority then concludes that the Chevron test is inconsistent with section 706.8 This method of reasoning creates ambiguity about whether the decision to overrule Chevron is based only on APA section 706 or also on Article III of the constitution.
The Court also recognizes that a court can interpret a statute as a broad delegation of power:
In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes “expressly delegate[]” to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to “fill up the details” of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that “leaves agencies with flexibility,” such as “appropriate” or “reasonable.” When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, “fix[ing] the boundaries of [the] delegated authority,” and ensuring the agency has engaged in “‘reasoned decisionmaking’ ” within those boundaries.9
The majority devotes many pages of its opinion to addressing the Government’s and dissenting Justices’ arguments that Chevron offers practical benefits, including enhanced predictability and consistency in judicial decisions. The majority discusses the problems that courts have encountered in attempting to decide when Chevron applies and what steps one and two mean in various circumstances. The majority also recognizes that the many qualifications that the Court has attached to Chevron over the years have made the task of applying Chevron far more complicated, difficult, and unpredictable.10
At the end of its opinion, the majority makes it clear that its decision to overrule Chevron has no effect on the continued validity of the thousands of decisions in which courts applied Chevron as the basis to uphold an agency’s statutory interpretation. After summarizing its decision to overrule Chevron, the Court says:
By doing so, however, we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.11
Justice Thomas writes a concurring opinion in which he explains why he believes that the Court’s decision is required by the constitution.12 Justice Gorsuch writes a lengthy concurring opinion in which he provides a detailed explanation for his decision to join the majority opinion.13 Justice Kagan, joined by Justices Sotomayor and Jackson, write an impassioned dissenting opinion. They argue that the majority has substituted a “rule of judicial hubris” for a “rule of judicial humility.”14
Many politicians and journalists have attached great significance to Chevron and to the possible overruling of Chevron. They characterize such a decision in extreme language that suggests that it will either make it impossible for agencies to function or that it will free regulated entities from the conditions of bondage that oppressive agencies have created.
The decision to overrule Chevron will have major effects on the way that lawyers write briefs and judges write opinions, but it will have only a modest effect on the likelihood that any agency will win or lose in a particular case. I estimate that agencies now will lose about 10 percent of the cases that agencies would have won before the Court overruled Chevron. The decision to overrule Chevron also will have the more subtle effect of encouraging agency lawyers to be more cautious in deciding whether to try to stretch the statutory authority of their agency.
Many people assume that the decision to overrule Chevron will eliminate the role of agencies in the process of interpreting the statutes they administer. It will not. It will instead substitute what the majority calls “respectful consideration” of agency views for deference to agency interpretations that the court considers to be reasonable.15 The majority repeatedly recognizes and praises the longstanding duty for a court to give what it calls “respectful consideration” to an agency’s interpretation of a statute:
[I]n Skidmore v. Swift & Co., 323 U. S. 134 (1944), the Court explained that the “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon . . . specialized experience,” “constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,” even on legal questions. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”16
There are very few cases in which a court will uphold an agency interpretation as reasonable but reject it after carefully considering it. One study found that courts uphold agency interpretations 21 percent more often when the court cites Chevron than when the court cites Skidmore.17 I think that study overestimates the effect of Chevron on judicial decision making for two reasons.
First, the study on which the finding was based covered the period 2003 to 2013. It included many decisions that preceded the many qualifications that the Court has attached to Chevron. The version of Chevron deference that the Court overruled in Loper in 2024 was much weaker and more contingent than the version that existed at the time that many of the decisions that were included in the scope of the study were made.
Second, drawing the inference that a court would have decided a case differently if it cited Skidmore than if it cited Chevron reflects a misunderstanding of the decision-making process. In most cases the judge makes a decision and then writes an opinion (or has a clerk write an opinion.) It follows that, in many cases a judge first decides in favor the agency and then writes an opinion in which he relies on Chevron or first decides a case against an agency and then writes an opinion that relies on Skidmore.
Finally, whether a judge or Justice likes or dislikes Chevron does not correlate well with the likelihood that the judge will uphold an agency decision. Thus, for instance, the Justice who embraced Chevron most enthusiastically for most of his years on the Court was Justice Scalia.18 He voted to overturn agency actions far more frequently than Justice Breyer—a Justice who was harshly critical of Chevron from the time the opinion was first issued.19
Professor Pierce is the author of over twenty books and 130 articles on administrative law, government regulation, and the effects of various forms of government intervention on the performance of markets. His books and articles have been cited in hundreds of judicial opinions, including over a dozen opinions of the U.S. Supreme Court.
Recommended Citation
Richard Pierce, Loper Bright Enterprises v. Raimondo, Geo. Wash. L. Rev. On the Docket (July 8, 2024), https://www.gwlr.org/loper-bright-enterprises-v-raimondo-chevron-is-dead-long-live-skidmore.
