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.

Comments

[JohannesDinkle]

So, does this mean bees are not fish?

[DaivdBehar]

Deferring to corrupt, rent seeking, Beltway, treasonous filth is not a good look for the federal court.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Wasn't that a state court?

[MatthewSlyfield]

Yes. California specifically.

[Doug Heffernan]

There is less of a need to overturn Chevron expressly when it can just be overridden on a case by case basis. Call that "applying Chevron's first step with more rigor" if you like, but the effect is the same.

The conservatives on the court are probably going to need Chevron in financial and business cases, in order to give some level of certainty to those domains and the economy in general. Otherwise they can just dispense with Chevron at the "first step".

This is what some might call having your cake and eating it too.

Be sure to listen to adler's jawing from the past week, with both hugh hewitt and on the 'we the people' podcast.

https://www.youtube.com/watch?v=kyNbu9ecFsk

https://constitutioncenter.org/interactive-constitution/podcast/the-epa-federal-power-and-the-future-of-climate-regulations-part-2

[Bruce Hayden]

This narrowing by subsequent courts is really what you expect with courts changing direction over time. Overruling Roe and Casey was the surprise - that the majority didn’t even bother trying to emasculate those cases by narrowing them to oblivion instead.

[SRG]

There is less of a need to overturn Chevron expressly when it can just be overridden on a case by case basis.

The current court is quite capable of overturning Chevron expressly despite the plaintive cry of Roberts trying to get the Gilead majority to find narrowly case-by-case.

[Doug Heffernan]

If they can get much of the same benefits from the MQD without overturning Chevron, and while still having a limited Chevron to put towards only conservative ends in the meantime, why should they be in a hurry?

Adler might say (did say, in fact), that the line drawing problem is too perilous. Drawing a line would require the sort of crystalline text that the court rarely comes up with, yet has no problem demanding of congress.

Adler, 2022/07/07 episode of 'we the people' at 50:24;
"One reason I'm not sure there are five votes for reviving the non-delegation doctrine is the same reason that folks like the late justice antonin scalia never fully embraced it, is because the line drawing problem is very difficult. And one of the reasons the court appears to have backed away from enforcing the non-delegation doctrine is figuring out what the line between a permissible and impermissible delegation is, is difficult."

[DaivdBehar]

This analysis is overly sophisticated. Federal judges are just running dogs of the government. They will not go against the interest of the employer that issues their paychecks.

[Frank Drackman]

"Chevron" Needs to get the "Don Lemon" treatment, banished to whatever 4th Dimension "Black Hole" (Black Hole? how about the (Very Wrong and Very Anti-Semite) Reverend Rafael Warnock, D, GA in "The Reverend's defense he's just continuing the long tradition of DemoKKKrat Anti-Semites) he claimed that Malaysian Airline vanished into ....

Frank "Chevron" also a Surgical Incision, one you don't want.

[DaivdBehar]

Frankie. More on Warnock and anti-Semitism.

The Democrat Party is the mortal enemy of Israel. NYC Jews voting for it are idiots.

[Frank Drackman]

My Long Island In-laws been voting "R" since 1964 (Barry Hussein Goldwater) but they are the exception.

[bernard11]

I'm not convinced the major questions doctrine makes much sense. If the statute delegates the authority to the agency to make a decision or policy, why does it matter if the court thinks it's a "major question" or not?

[Squirrelloid]

I think the distinction is that if Congress expressly delegated the power to deal with that major question to the agency, it's fine. But if it's a major question, and the delegation isn't direct and clear, but instead the agency arguing it falls under a delegation that was obviously intended to handle other issues, then Congress didn't actually delegate that power.

Consider the eviction moratorium issued by the CDC. The law invoked was very obviously directed at destroying disease carrying or harboring materials and organisms. It is completely implausible that Congress thought they were delegating complete control over the economy to the CDC just because there was a disease.

[Michael P]

Call it the bureaucrat's syllogism: the law authorizes us to do something, this is something, therefore the law authorizes us to do this.

[bernard11]

So it's more "the bigger the issue the clearer the delegation has to be?"

[Michael P]

That's my interpretation -- it's a limit on judicial deference (to an executive agency) about the scope of an authorizing statute.

In the context of the EPA's recent loss, for example, the authority to order shifts of money or power generation between different modes of generation would align better with the domain and expertise of the Department of Energy than the EPA, so Congress would have to explicitly grant that kind of authority to the EPA.

[David Nieporent]

So it's more "the bigger the issue the clearer the delegation has to be?"

Something like that, yes.

A good example was tobacco. By its literal terms, the Food, Drug, and Cosmetic Act could be read to authorize the FDA to regulate — well, ban, really — tobacco. But nobody understood the law that way, including the FDA itself. And on numerous occasions, Congress considered but rejected granting the FDA authority to regulate smoking; also Congress had passed some tobacco-specific regulations itself. Then, 70 years later, the FDA said, "Oh, we're going to start interpreting the FDCA to allow us to regulate tobacco." Under Chevron, the FDA probably could've.

But tobacco wasn't some small niche innovation; it was a massive industry. The Supreme Court most certainly didn't say that the tobacco industry couldn't be regulated; what it said was that before it would conclude that Congress wanted the FDA to regulate it, Congress would have to make its wishes much more clear.

[David Nieporent]

If the statute delegates the authority to the agency to make a decision or policy, why does it matter if the court thinks it's a "major question" or not?

It doesn't. That's not what the major question doctrine addresses. The major question doctrine is about whether in fact that's what the statute really did.

[Stephen Lathrop]

Nieporent, is that really quite accurate? Based on what I read here, seems more like the Court says deference to the government for ambiguity gets treated two ways: Most of the time, on ordinary questions, language X empowers government action. But when the Court decides the question would have effects we think are really big effects, then language X does not work for us. We demand more specificity.

I think as a practical matter, that will make some wise legislation harder to pass. Even politicians who intend a particular result may be more likely to vote for language that does not explicitly frame that result in sound-bite format for political opponents anxious to use it as a wedge issue in a primary. You may call that a positive, or not. But it also opens considerable room for the Court to make policy from the bench, while deciding which issues are big enough. It even gives the Court what looks like a retrospective veto power, exercisable opportunistically and at discretion, when it judges the political climate would not support re-passage of a major question previously decided by a different legislature.

[ReaderY]

But I think proponents would say that it clear to members of Congress that unless people are willing to say something clear enough that they risk being objected to, they can’t do anything major, is a positive plus.

Indeed, the best way that members of Congress can avoid electoral defeat is to make it a House of Lords, a ceremonial debating society with no power to do anything at all. Any time courts pay any attention at all to what Congress has to say, it creates risk that members of Congress will be voted out of office.

If your argument is valid, why should courts EVER pay any attention to anything Congress says?

[Sarcastr0]

I'm not sure I read these recent decisions to be embracing an internationalism over text method of interpretation.

To be fair, they don't seem to embrace any broad, really.

I actually would not mind if that's the direction they went, I just wish they'd be clearer about what they're doing and the rationale behind it. Like, it might also just be overdelgation!

[ah....Clem]

Seems to me that the "major questions doctrine" is just an ad-hoc dodge that will allow the court to ignore precedent whenever it feels like it.

I think about it this way: Congress writes some legislation. It's ambiguous, so which branch of government gets to decide which interpretation is operative? Under Chevron, it falls to the Executive branch, but only for things that are truly ambiguous. Under the "major questions doctrine", the judicial branch gets to yank that authority away in an exercise of simple rank power.

Granted, the judiciary is tasked with interpreting the law, but we only get to Chevron if it's been determined that the law is ambiguous. Why should this give the court the ability to be the decider, other than the fact that they have the votes?

[epsilon given]

The Supreme Court has held before that a law that is too vague is unConstitutional. I fail to see why, rather than allow the Executive leeway to interpret vaguely worded laws passed by Congress according to bureaucratic whim, that the law shouldn't be thrown out altogether.

Vague laws are unConstitutional precisely because they can be interpreted on a whim in unpredictable ways. It shouldn't be the Executive or the Courts who decide how such a law should be interpreted -- it's the responsibility of Congress to be clear on what the law means, so that it can be justly applied.

Come to think of it, there's even a standard for applying vague-ish laws to Defendants: if there is reasonable disagreement in what a law means and how a law should be applied, it should always be interpreted in a way to most favor the Defendant, and not in favor of the State.

[David Emami]

And after that, US v. Carolene Products. No more "rational basis test" second-tier status for trade and contract. Strict scrutiny for everything. Hey, I can hope, can't I?

[Stephen Lathrop]

Remarkable to watch good lawyers, riding momentum imparted by centuries of custom and tradition, plunge right past this scene of catastrophe, moving so fast that the sight of it barely registers. The pairing of Dobbs and Bruen has announced a new age of jurisprudence.

"Doctrines," may continue to be applied as before, to entangle, burden, and hamper certain outcomes, but now only to the detriment of advocacy the majority disapproves. Also, new "doctrines," may be purpose-built at convenience, to support and promote outcomes the majority approves. But for that purpose only. There will be constraint aplenty in all of this, but none of it will apply to the Court itself.

Lawyers who aspire to keep up with Supreme Court practice should at least take better note of the Chief Justice's posture—his agonized crouch on the sidelines—while he watches his Court's new majority tear to bits the Court's legitimacy.

[epsilon given]

This has always been the case, though, hasn't it? Otherwise, there would be absolutely no cases that would have been overturned by a later Supreme Court. The list of overturned Supreme Court decisions isn't exactly short.

That this Court is "trashing its legitimacy" tells us more about you, than about the Court itself, because the "precedents" being "trashed" were just as controversial when they were first made, as they are today. Did the Courts trash its legitimacy when it first made these decisions? I would certainly argue that the Courts have lacked legitimacy among Conservatives -- which is why Conservatives have strived for fifty years to get control of the Courts -- but the fact that they have finally gotten control of the Courts, the only reason you find the Court decisions illegitimate, is because they are now making decisions you disagree with.

For many of us, however, the Courts are finally becoming somewhat legitimate.

[ReaderY]

I think that the 3-3-3 court is particularly visible on this issue. I think that Barrett and Kavanaugh are interested in cabining judicial deference to agency opinion, and will continue to give the conservatives some moderated wins on this issue, but aren’t interested in abolishing it altogether. Nor do they seem to be interested in the idea that there is no such thing as subject-matter expertise and a dictionary is all you need to apply any law in a reasonable fashion.

[ReaderY]

That said, reading Nixon v. GSA, the naïveté of the justices’ belief that GSA expert archivists would determine the applicability of executive privilege in a completely non-partisan, technocratic, expert way and that there opinion represents unbiased expert opinion seems positively quaint.

It seems from a world where gentlemen could simply be expected not to read each others’ mail.

[Stephen Lathrop]

ReaderY — Do you happen to know any expert archivists? I am married to one. It took her the first 20 years of marriage to get comfortable with the notion that as a former journalist, I was not a menace to her profession. For dispassionate adherence to standards—and especially for protection of confidentiality—I put my money on the archivists against this Supreme Court, and give generous odds.

[CJColucci]

I took Administrative Law before Chevron (had to remember what the course was about back then) and, like Chevron's author, didn't think it was a big deal when it came out. More of a verbalization of existing, if somewhat inconsistent, judicial practice. It was notorious at the time that some judges were more deferential than others and some agencies got more deference than others. I suspect that whether the Court bothers to overrule Chevron or not, there will be more change in what courts say than in what they do.

[Enemy of the State]

What I'd like to know is with Thomas's acknowledged review of substantive due process, is he attempting to rehabilitate the 14th's Privileges or Immunities clause, shut down a mere 5 years after passage by the Slaughter-house cases?

[epsilon given]

Justice Thomas has been trying to rehabilitate the 14th Amendment for years now. This is consistent with his past attempts (mostly showing up in dissents and concurrent opinions) to do so.