Will Chevron Get the Lemon Treatment?

The Supreme Court proclaimed this term that the Lemon test had been abandoned. Is this what is in story for Chevron?

In Kennedy v. Bremerton School District, the Supreme Court swept aside the fifty-year-old Lemon test (from Lemon v. Kurtzman) for evaluating Establishment Clause claims under the First Amendment on the grounds that the Court has "long ago abandoned Lemon and its endorsement test offshoot." Though never formally overruled, the Court has now recognized Lemon's abnegation. Could this also be what is in store for Chevron?

Several justices have made no secret of their distaste for the Chevron doctrine, and the Court has not deferred to an agency interpretation of a statute under Chevron in several years, but (unlike with Lemon) it has not been evaluating claims under some other analysis.

Like Chevron, the Lemon test had not been relied upon by the Supreme Court to decide a case in years, and it had been thoroughly criticized in prior opinions (such as American Legion v. American Humanist Association), and some lower court judges had taken notice. Yet unlike Chevron, the Lemon test had never really become a fixture of the relevant Supreme Court jurisprudence. Lower courts cited and applied Lemon, but the Supreme Court rarely ever did, citing it favorably in no more than a handful of cases since it was decided in 1971.

Chevron, on the other hand, is one of the most cited and relied upon Supreme Court decisions on any subject. Further, even when not relied upon, courts can be said to following Chevron's strictures, particularly its admonition that if the statute answers the question at hand–a question to be answered by applying the traditional tools of statutory interpretation–the statute controls and no deference to the agency is due. In addition, as the Supreme Court has made clear repeatedly, not just any ambiguity will do. Rather, the ambiguity must concern a matter delegated to the agency to resolve.

The Supreme Court does not seem to be abandoning Chevron, so much as narrowing the range of cases in which Chevron deference is appropriate. It has been doing this, first and foremost, by applying Chevron's first step with more rigor, thereby disposing of more cases at step one. It is has also refused to confer Chevron deference when the federal government did not ask for it, and reaffirmed that Chevron deference does not apply when the question concerns a "major question" (as in King v. Burwell) or another matter beyond the agency's reach (such as the scope of judicial review, as in Smith v. Berryhill).

Thus the Court has not been "abandoning" Chevron so much as it has been shoring up the boundaries of Chevron's domain. The message to lower courts is not to question whether Chevron should apply, but rather to do the hard work of interpreting statutes and ensuring agencies do not receive Chevron deference on questions beyond the scope of their delegated authority and expertise.

None of this means the Court will not eventually overturn Chevron (though I have my doubts), but I do think it suggests Chevron will not simply go the way of Lemon.