Has the Supreme Court Put Chevron in the Crosshairs?

One of today's two cert grants comes in a case asking the justices to reconsider Chevron v. NRDC.

The Supreme Court granted certiorari in two cases today, Murray v. UBS Securities, LLC and and Loper Bright Enterprises v. Raimando. The first case concerns which party must demonstrate the existence of "retaliatory intent" (or lack thereof) for whistleblower claims under Sarbanes-Oxley, and the latter concerns the scope of the National Marine Fisheries Service's authority to impose requirements on fishing vessels. Yet it's the phrasing of the question presented in the second case that is of particular intersest.

The petition for certiorari in Loper Bright presented two questions to the Court:

1. Whether, under a proper application of Chevron, the MSA [Magnuson-Stevens Act] implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry.
2. Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

Of note, the Court only granted certiorari on the second question, meaning that the briefing and argument will focus on whether the Court should "overrule" or "clarify" Chevron v. NRDC. To say this is significant is an understatement.

The prospect of overruling Chevron already has legal commentators in a tizzy, but it is important to note that the question presented is not limited to whether the Court should overturn Chevron. The QP asks the Court, in the alternative, to limit Chevron -- some would say, confine Chevron to its proper domain -- by making clear that a statutory silence does not constitute the sort of ambiguity that justifies deference to the agency. Put another way, the QP asks the Court to reinforce the principle that agencies only have that authority Congress has actually delegated to them or, if you prefer, that a statute grants what it grants, and the rest is silence.

The Court's cert grant in Loper Bright brings to mind the Court's 2013 grant in City of Arlington v. FCC, in which the Court also limited the grant to the underlying Chevron question (whether to grant deference to an agency's determination of its own jurisdiction), leaving out the request to consider the intricacies and application of the specific regulatory scheme at issue.

In Arlington the agency prevailed, over a forceful dissent from Chief Justice Roberts that stressed the foundational principle that federal agencies only have the authority delegated to them by Congress. While deference about some questions may be warranted, the Chief argued, it is abdication for courts to defer to agencies on the question of what authority the agencies have been given by Congress. Rather, he explained, it is the job of courts to determine what power an agency has been given before considering whether there is an ambiguity that might justify some degree of deference.

Though he was in dissent, the Chief has harkened back to this principle repeatedly in subsequent cases, including King v. Burwell and West Virginia v. EPA. This case presents another opportunity the Chief to build on those prior decisions (and vindicate his Arlington dissent) by emphasizing delegations of authority to federal agencies are a departure from the constitutional baseline, and thus agencies can only claim that authority which has been clearly and expressly delegated to them. (In effect, it's an argument for a more robust form of "Step Zero" analysis.) Of course, the Chief may not be in control here, and if there are five votes to overturn Chevron without him, that is what the Court will do, but I have my doubts.

It seems to me this is likely to be another case in which the Court narrows Chevron so as to limit its application. Note that the Supreme Court has not cast doubt on Chevron in recent years so much as it has ignored it (in some sense giving it the Lemon treatment). The Court has not relied upon the Chevron doctrine to decide a case since 2016, and just last term it resolved a major Chevron case without even citing the opinion. The Court has left Chevron in place for use by the lower courts, which continue to use the doctrine with some regularity, while also making clear that courts should defer less often than they have in the past. This is of a piece with the Court's decision to narrow Auer deference in Kisor v. Wilkie, as well as the elevation of the Major Questions doctrine. This is a way to curtail the ability of agencies to aggrandize their power, but without destabilizing judicial review of agency action.

While most calls for overturning Chevron today come from the political Right, it is worth remembering that the Chevron doctrine was initially embraced by a Republican adminsitration and conservative judges as a way to push back against broad, purposivist interpretations of regulatory statutes that compelled agencies to regulate more aggressively. Telling courts to resolve all statutory ambiguities themselves is not a particularly effective way to curtail or constrain the administrative state, at least not without greater guidance about how statutes should be interpreted in the first place. And if the Court were to provide greater guidance about how statutory grants of authority should be construed, Chevron would not do nearly so much to empower federal agencies.

So is the Court preparing to overturn Chevron? Perhaps it is, but I think it is more likely the Court merely takes the opportunity to narrow the doctrine and make clear that statutory silences and ambiguities should not be construed as grants of agency authority.