'Chevron Is Overruled' Chief Justice Says in Opinion on Much-Watched Cases

During a January oral argument, justices left little doubt that Chevron’s days were likely numbered (see 2401170074), though some court watchers speculated the doctrine could be further restricted rather than overruled outright.

Writing for the conservative super-majority, Chief Justice John Roberts said, "Chevron is overruled." Courts, he continued, “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires.” Roberts said Chevron's presumption that statutory ambiguities should be considered implicit delegations of authority by Congress to federal agencies "is misguided.”

Roberts clarified that the decision doesn’t question previous cases decided on the basis of the doctrine, however. “The holdings of those cases that specific agency actions are lawful -- including the Clean Air Act holding of Chevron itself -- are still subject to statutory stare decisis despite the Court’s change in interpretive methodology.”

Justice Ketanji Brown Jackson recused herself from Loper -- which was decided 6-2 -- because she participated in an earlier decision as an appeals court judge. Jackson joined Justices Sonia Sotomayor and Elena Kagan in dissenting on Relentless.

In the majority opinion, Roberts discusses the court's history and how Chevron, “decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional approach” for reviewing agency decisions. The deference Chevron “requires of courts reviewing agency action cannot be squared” with the APA, Roberts said: “Chevron defies the command of the APA that ‘the reviewing court’ -- not the agency whose action it reviews -- is to ‘decide all relevant questions of law’ and ‘interpret … statutory provisions.’”

“Today, the Court places a tombstone on Chevron no one can miss,” Justice Neil Gorsuch said in a concurring opinion.

Strong Dissent

Kagan issued a blistering dissent, which she read from the bench Friday. Chevron “has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds -- to name a few, keeping air and water clean, food and drugs safe, and financial markets honest." She said the decision, taken together with Thursday’s ruling in SEC v. Jarkesy (see 2406270063), is "yet another example of the Court's resolve to roll back agency authority, despite congressional direction to the contrary."

Some issues regulators address “involve scientific or technical subject matter,” Kagan wrote: “Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not.” Agencies report to the president, “who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy.”

Kagan accused fellow justices of a power grab: "In one fell swoop, the majority today gives itself exclusive power over every open issue -- no matter how expertise-driven or policy-laden -- involving the meaning of regulatory law."

SCOTUS hasn't cited Chevron deference for years, but it remains important for lower court decisions (see 2306290063). The New York Times said Friday that lower courts relied on Chevron in 17,000 cases and SCOTUS did so in 70.

With the decision, “judges don't even have to pretend to care about what agencies say,” Public Knowledge Senior Vice President Harold Feld told us. “It all depends on what [judicial] panel you get.”

The decision will take time to digest, said Andrew Schwartzman, Benton Institute for Broadband & Society's senior counselor. “This undoubtedly makes it much harder for the FCC, and other agencies, to defend statutory interpretations,” he said. “That is extremely important.”

Congressional lawmakers’ reactions to the Supreme Court’s decision divided sharply along partisan lines. Lead Republicans hailed the ruling but didn’t specifically touch on its implications for the FCC. Loper Bright and Relentless “will help restore the proper balance of power as the Founders envisioned it,” said House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash. “Moving forward, major decision-making authority will no longer automatically be deferred to unelected, unaccountable bureaucrats.”Senate Communications Subcommittee ranking member John Thune, R-S.D., called the ruling a “big win for the Constitution and personal freedom and a big loss for overzealous D.C. bureaucrats and an expansive federal government.”

Sen. Ed Markey of Massachusetts, a top congressional cheerleade r for Title II reclassification, and other Democrats strongly criticized the decision. “Extremist Republicans and their big business cronies are rejoicing as they look forward to creating a regulatory black hole that destroys fundamental protections for every American,” Markey said. It’s a “naked power grab by a radical, right-wing Supreme Court that has proven dismissive of precedent and divorced from reality," said House Commerce ranking member Frank Pallone, D-N.J., in a statement. “The Court has just thrust Americans deeper into uncertainty and put a bullseye on more of our bedrock rights and protections, including the very ones that protect our health and safety.”

"This opinion will have massive ramifications for administrative law, and will affect any area that federal agencies regulate, such as environmental issues and reproductive justice,” according to Free Press Policy Counsel Yanni Chen. It has big implications for the FCC’s oversight of an open internet and broadband affordability, Chen said.

This decision “empowers courts to sidestep agency expertise, potentially favoring corporate interests over public welfare and enabling political appointees to shape consumer policy without the necessary background,” said the Consumer Federation of America: “This shift toward judicial activism could undermine vital protections for all Americans.”

Expect an explosion of litigation by industry seeking to revisit settled policy, with the decision opening up numerous options, appellate lawyer Sean Donahue of Donahue & Goldberg told reporters. David Doniger, Natural Resources Defense Council senior attorney, said while the majority decision tries to give assurances about past court decisions made under Chevron deference not being affected, Justice Amy Coney Barrett during oral argument in Loper had raised the idea of parties being able to petition an agency to address a question previously addressed, with the petitioner then able to go to court when the agency gives an answer the petitioner doesn't like. That could be an easy pathway to revisiting those past decisions, Doniger said.

Chevron critics were quick to declare victory.

The Supreme Court’s decision "formally burying the Chevron doctrine is overdue but still important, even though the Court itself has not cited Chevron since 2016,” Free State Foundation President Randolph May emailed. In “ignoring” the APA’s “injunction that courts reviewing agency decisions should decide 'all relevant questions of law,' Chevron allowed agencies to expand their power beyond Congress’s intent by deferring to bureaucrats’ interpretation of supposedly ambiguous statutes,” May added.

U.S. Chamber of Commerce CEO Suzanne Clark called the ruling “an important course correction that will help create a more predictable and stable regulatory environment.” Chevron deference “allowed each new presidential administration to advance their political agendas through flip-flopping regulations and not provide consistent rules of the road for businesses to navigate, plan, and invest in the future,” Clark said.

“The Court is simply saying that administrative agencies are due ‘respect’ during judicial review, but they are not due servile deference,” Cooley’s Robert McDowell said in an email. The court “went out of its way to avoid overturning cases that were decided under the Court-created 1984 Chevron deference doctrine and is forward-looking. This important provision avoids the chaos doomsayers were predicting.”