Narrow Chevron, Broad Chevron

David Super

      Over the past several months, I have been asked to present to numerous advocacy groups and foundations about the impending demise of Chevron v. NRDC.  In the course of these meetings, it has become apparent that people have two very different things in mind when they speak of the Supreme Court’s evisceration of Chevron.  Now that the Court’s decision Loper Bright has finally overruled Chevron, it seems especially important to disentangle these two conceptions and assess what the Supreme Court’s decision means for each of them. 

     The narrower view of what was at stake in Loper Bright is whether agencies’ readings of the statutes they implement are entitled to deference when ordinary tools of statutory construction are not dispositive.  The Court has held that they are not.  The broader meaning of “the assault on Chevron” as many groups conceive of it is an assault on the Administrative State more generally.  In this view, overturning Chevron is an important mile-marker in a comprehensive campaign that has been underway for some time and that may transform life in this country.  On balance, Loper Bright likely advances that agenda, but probably far less than many think on both sides.  How clearly it foreshadows further sweeping attacks on the administrative state from the Supreme Court is far from clear; at a minimum, we face much more severe threats from other sources.

     Chevron was very much a creature of its time.  It was decided by a Court composed of two consistent conservatives, two consistent liberals, and five center-right swing justices.  Deference is a good fit for a Court without a sharp ideological agenda of its own and with a majority pre-disposed against rocking boats unnecessarily.  It was a good fit for a Court signaling a retreat from the Warren Court’s challenges to the status quo.  It upheld a deregulatory policy of the Reagan Administration at a time when President Reagan was marching toward the one of the biggest presidential landslides in U.S. history and Republicans appeared to be the more-or-less permanent party of governance (with seven of the nine justices being Republican appointees). 

     Chevron also fit well within the approach to statutory interpretation of its day.  Coming before Justice Scalia’s ascension to the Court, broad-based efforts to discern legislative intent were the order of the day and committee reports were royalty.  Many of the most important cases taught until recently in Statutory Interpretation courses were decided at about the same time.  Administrative agencies’ strongest claim to primacy in reading statutes is that they were so often in the room when those statutes were drafted.  Time and again, after soliciting input from a broad range of stakeholders Members of Congress and their staff will excuse all outsiders to begin deliberations – but allow agency representatives to stay.  Even when Congress is irked at the current administration, career staff nonetheless often still get to stay.  On several important issues where the statutory language clearly indicated one outcome, agency officials sympathetic with that result on policy grounds have insisted that they cannot honor the natural reading because they promised to do otherwise in one of these closed-door meetings.  These understandings are clearly superior to what may be gleaned from committee reports and floor debates. 

     Today’s context is very different.  Although today’s Court has one fewer Republican appointee than it did when it handed down Chevron, recent Republican presidents have sought very different kinds of justices.  A Court with a clear deregulatory agenda is unlikely to see much appeal in deferring to regulators.  And Republicans no longer appear the natural residents of the White House:  only one Republican candidate since 1988 has one a majority of the popular vote or won the electoral college without nail-biters in several key states.  A much larger proportion of the statutory interpretations seeking deference will likely come from agencies run Democrats. 

     The statutory interpretation climate also has changed dramatically.  Open reliance on legislative history is stigmatized.  Legislative history’s obvious utility continues to give it some influence at the margins, but its open embrace is forbidden.  Therefore, with agencies’ best argument for comparative advantage in construing statutes being their inside knowledge of the drafters’ intent, it was unsurprising to see the Chief Justice declare that “agencies have no special competence in resolving statutory ambiguities.”  As a lobbyist before the New Textualism, I spent a great deal of time focusing on committee reports and points made in floor debates.  Even after the Court turned its back on legislative history, I continued to do so because I knew agencies would rely on these documents to reach their conclusions.  Influencing agencies remains valuable even without Chevron, but Loper Bright certainly has reduced the potential payoff of such advocacy. 

     How much Loper Bright transforms the practice of statutory interpretation remains to be seen.  The Court’s opinion in Vermont Yankee v. NRDC gave courts several acceptable grounds for demanding that agencies undertake further proceedings, but its body language in the other direction was so ferocious that few lower courts dared to do so.  Similarly, nothing in the Chief Justice’s opinion precludes agencies from articulating their reasoning at great length (not subject to the page limits on litigants’ briefs) or directly discourages courts from accepting that reasoning.  The tumult around Chevron’s demise may, however, cause courts to shift to a hyper-critical posture.  On the other hand, if former President Trump returns to power, the Supreme Court may find means of re-establishing deference under a different moniker. 

     Even less clear are Loper Bright’s implications for the broader assault on the administrative state.  The Chief Justice relies heavily on Chevron deference’s supposed inconsistency with the Administrative Procedure Act, a point that did not trouble Justice Scalia when he defended Chevron in his U.S. v. Mead dissent.  Other forms of deference to agencies – on finding facts and exercising discretion – have clear, firm grounding in the APA.  The Chief Justice notes those with approval as he distinguishes them from deference on interpreting statutes.  Deference to agencies’ findings of general, regulatory facts or their applications of discretion do not clash with the Court’s other priorities the way Chevron allowed sanctuary for reviled legislative history.  (Agencies’ findings of fact concerning particular regulated entities may be another matter.)  Many agency policies that advocates believe are most at risk in fact result not from statutory interpretations but from agencies’ exercises of enforcement discretion that Loper Bright does not purport to address.  To be sure, the Court’s general deregulatory agenda will guide how it applies the “arbitrary and capricious/abuse of discretion” test just as it will guide how the interprets statutes.  But Loper Bright does not clearly signal that the Court will undertake further structural reductions in agencies’ regulatory powers. 

     The broader danger to public protections, however, is very real.  We need to look beyond just the Court.  Congress in 2018 came alarmingly close to passing sweeping changes in Administrative Law that would have hobbled environmental, consumer protection, and civil rights enforcement.  Project 2025 proposes radical dismantling of public protections and the wholesale replacement of career staff experts in public agencies with political operatives.  And groups backed by the American Legislative Exchange Council (ALEC) have come disturbingly close to triggering an Article V convention that they would control; last summer their mock convention showed that they would permanently gut environmental and civil rights protections if they get their convention.  House Budget Committee Chairman Jodey Arrington (R-TX) has introduced a resolution to call such a convention on the (highly contestable) premise that they already have the requisite 34 states.  Each of these threats is vastly more severe than Loper Bright yet has received a small fraction of the attention. 

     @DavidASuper1