Whether Chevron Stands or Falls, Any Deference Should Be Based Upon Delegation, Not Ambiguity

Some thoughts on the most important issue in Relentless and Loper Bright.

The Supreme Court recently heard argument in two cases in which the petitioners have asked the justices to reconsider the Chevron doctrine. The Court's willingness to reconsider Chevron has been a long time coming. As I explained in my opening remarks at a recent Solomon Center panel at Yale Law School, concern about Chevron, and in particular how it has been applied in lower courts, has been building for some time. 

Recall that in 2018, in Pereira v. Sessions, in what would be one of his last opinions on the Court, Justice Anthony Kennedy raised deep concerns about the way Chevron has been understood and applied in lower courts.

At issue was the timing and amount of notice the federal government must give non-citizen, non-permanent residents to trigger the stop time rule, which can affect whether such individuals are allowed to remain in the United States.

Lower courts had initially adopted a rule requiring complete notice to trigger the rule. Ultimately, however, in the context of individual adjudications, the Board of Immigration Appeals disagreed. This prompted multiple circuit courts to adopt the contrary rule—a rule contrary to what courts had previously determined was the best interpretation of the statute (and the interpretation eight of nine justices would later conclude was compelled by the statutory text.)

Even though there was little statutory basis for the BIA's stingy, late-developed, pro-deportation interpretation, a majority of circuit courts had upheld it because the statute was ambiguous. 

As Justice Kennedy remarked, the sort of analysis courts conducted in these cases to justify upholding the BIA's interpretation, relying upon Chevron, constituted "an abdication of the Judiciary's proper role in interpreting federal statutes."

Wrote Kennedy:

The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency's interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still. 

Given the concerns raised by some Members of this Court, it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary. 

If Justice Kennedy expressed such concerns in 2018, it should not surprise us that–some five years later with little evident change–the Court has is reconsidering Chevron.

As I see it, the Court has reached this point because of a range of concerns, some (but not all) of which Kennedy identified in Pereira.

First, in practice, Chevron is often used to uphold agency interpretations that have little to do with allowing agencies to exercise their delegated authority to make policy judgments based upon agency expertise. The procedural issue in Pereira would seem to be a good example of this.

Second, despite Supreme Court decisions suggesting that ambiguity alone is insufficient to trigger Chevron deference, lower courts often fail to engage in any meaningful "step zero" analysis in order to make sure that Congress had delegated the relevant authority to the agency. Instead, Chevron has become an excuse for courts to abdicate their responsibility to resolve legal questions in favor of agencies.

Third, as highlighted in the various recent major questions cases, agencies increasingly view Chevron as a license to go on a scavenger hunt for plausible statutory authority to implement policies favored by the executive branch, whether or not such policies have been authorized by Congress. Put another way, rather than facilitating the ability of agencies to faithfully execute the law Congress enacts, Chevron is used to enable agencies to go their own way.

A fourth concern, most acute in areas in which agencies make policy through adjudication (as in immigration and labor policy) is that agencies are able to change their interpretations–and thus change the applicable law– without going through the sort of open and deliberative rulemaking process that ensures those who will be subject to the rule have notice and an opportunity to be heard. 

What these concerns have in common is that they all represent a failure of agencies and lower courts to take seriously the idea that Chevron deference is grounded in delegation, and that this idea necessarily entails limits on Chevron's domain.  While some initially sought to justify Chevron on separation of powers or broad policy grounds, the Supreme Court's post-Chevron jurisprudence (including, but not limited to, cases like Mead) make clear that if Chevron is to be justified, it must rest on the conclusion that Congress delegated such authority to the agency in question, and that where there is no indication that such a delegation occurred, there is no basis for courts to defer to an agency interpretation. Put another way, Chevron deference should apply only in those instances where it can be presumed that Congress delegated authority to an agency to resolve what is essentially a policy choice – e.g. whether an air pollution "source" should be defined so as to accommodate "bubble" policies – and not because agencies have any inherent authority to make such choices. 

A key question in Relentless and Loper Bright is whether the concerns outlined above require overturning Chevron. For myself, I am skeptical. I am on record suggesting that, in addition to the failure of courts to respect the limits of Chevron's proper domain, that the underlying issue is the scope of authority that Congress delegates to agencies. In other words, a doctrine that focuses on delegation as the source of deference – as opposed to mere ambiguity – would likely do the trick, but this requires clarifying how many understand Chevron. As Thomas Merrill noted on this blog, while parts of Chevron stress the need to determine whether Congress delegated a given policy choice to the agency in question, other parts of the opinion suggest ambiguity or silence is sufficient to justify deference. Some subsequent opinions, such as that in City of Arlington v. FCC, further muddied the waters.

As it happens, the question presented in both Loper Bright and Relentless gives the Court ample space to navigate these questions.  The question presented deliberately and carefully presents two possible ways to resolve the case and address Justice Kennedy's concerns. Here's the QP for both cases:

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.

The QP suggests the Court overturn Chevron, but it also gives the Court room to clarify (and perhaps reorient) Chevron to focus on the delegation question–and to do so in a way that aligns nicely with the Court's recent major questions doctrine decisions. Specifically, the Court could emphasize that, before even considering whether to defer to an agency, they must first conclude that Congress delegated authority to the agency in question to resolve a policy issue with the force of law, and that when a statute is silent on the existence of agency of authority, courts should presume that such authority does not exist. Statutory silence is just that: Silence. It is not a delegation of power. (Admittedly, this is a position I have held for some time, and urged (unsuccessfully) in Arlington.)

As I see it, imposing this sort of limitation is the key step. Whether this is done by overturning Chevron, "Kisor-izing" Chevron, or merely adopting the Chief Justice's Arlington dissent is almost a stylistic choice. There is plenty in Chevron and subsequent cases to justify this outcome, even if it would overturn or repudiate some of the ways that Chevron has been applied.

Note that so long as the Court focuses on delegation as the source of agency authority, neither overturning nor modifying Chevron would limit the ability of Congress to entrust agencies with discrete policy questions in areas informed by agency expertise. As Chief Justice Roberts noted early in the Relentless argument, deferring to an agency on whether scientific or other evidence supports a particular conclusion is distinct from deferring to an agency's interpretation of statutory text. Indeed, even if the Court were to fully overturn Chevron in favor of a Skidmore-like regime, this need not foreclose reliance upon agency expertise, nor need it have any direct effect on how courts conduct arbitrary and capricious review and apply cases like State Farm.

This would suggest that some of the horror stories about a post-Chevron administrative state are quite overstated. The administrative state was able to operate before Chevron was decided (and before it was made the basis of a doctrine), and the administrative state will persist no matter how these cases are resolved.