Administrative Law

Is Supreme Court Limiting Chevron's Domain?

The justices show little interest in deferring to agency interpretations.

|The Volokh Conspiracy |

The Chevron doctrine has been controversial since its inception. In 1986, then-Judge Breyer criticized Chevron deference as an unwise "abdication of judicial responsibility." More recently, then-Judge Neil Gorsuch characterized Chevron as "a judge-made doctrine for the abdication of the judicial duty." With such views on the Surpeme Court, is Chevron deference at risk?

Last term, the Supreme Court addressed the question of Chevron deference in five cases. In all five cases, a majority of the Court refused to defer to the agency's interpretation of the relevant statutory provisions. (And, in a sixth case, Encino Motorcars v. Navarro, the Court rejected the statutory interpretation advanced by the agency, having previously determined that the agency's interpretation was not eligible for Chevron deference.) Of potential note, Justice Gorsuch was in the majority in each one of these cases and wrote for the Court in two of them.

I reviewed these cases, and their handling of Chevron, for The Regulatory Review, a website run by the Penn Program on Regulation. You can find my full analysis over there, but here's my conclusion:

Overall, nothing in the past term casts express doubt on Chevron's vitality. The relevant opinions all proceeded on the assumption that Chevron remains good law, and there were few suggestions to the contrary.

At the same time, these decisions suggest that most of the justices, most of the time, are not particularly interested in how agencies interpret federal statutes. Statutory interpretation, after all, is something judges do quite often, so the justices may be excused if they do not think the agencies do it quite as well. If there is a message to lower courts in these decisions, it is that courts should not be too quick to think they must defer to federal agencies. The gaps for Chevron deference to fill, in this view, may be few and far between. Time will tell whether this pattern holds

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  1. Maybe their bravery in ignoring Chevron deference will rub off on ignoring the atrocious Slaughterhouse.

  2. “Overall, nothing in the past term casts express doubt on Chevron’s vitality. The relevant opinions all proceeded on the assumption that Chevron remains good law, and there were few suggestions to the contrary.”

    The Supreme court is insanely reluctant to actually overrule its past rulings. They usually just limit their range until they have no application.

    I mean, I’m not sure they’ve even overturned Dred Scott, and they certainly haven’t overturned the Slaughterhouse decisions. That’s why we’re stuck with “substantive due process” instead of the P&I clause being enforced.

    So, no, they’re not going to overturn Chevron, they’ll just scale back the sorts of cases where it applies until it’s a dead letter except for warping the law a bit.

    1. The 14th amendment, not the Court, overruled Dred Scott.

  3. The entire theory of a regulatory state not directly legislated by Congress (and thus possibly a constitutional violation) rests on ideas like “Congress reviews them, or can in theory, from time to time”, and “individual congressmen can call up the agency’s leaders and ask what’s going on”.

    For a second entire branch to takes it hands largely off, too, well, so much for the concept of representative government.

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  5. the court is not limiting chevron’s domain. Supreme court is Overruling its own past rules. To get Microsoft Support, visit

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