Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

In the Supreme Court of the United States

__________

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

v.

GINA RAIMONDO, in her official capacity as Secretary of Commerce, ET AL.,

Respondents.

__________

On Writ of Certiorari to the

United States Court of Appeals for the D.C. Circuit

__________

BRIEF OF THE CATO INSTITUTE AND

COMMITTEE FOR JUSTICE

AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

Curt A. Levey

THE COMMITTEE FOR JUSTICE

1629 K Street, N.W.

Suite 300

Washington, DC 20006

(202) 270-7748

clevey@committeeforjustice.org

July 21, 2023

Anastasia P. Boden

Counsel of Record

Thomas A. Berry

Isaiah McKinney

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1414

aboden@cato.org

i

QUESTION PRESENTED

Whether the Court should overrule Chevron.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE................................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 5

I. Chevron Deference Was Unprecedented .......... 5

A. The Pre-Chevron Cases ............................... 5

B. Chevron Itself ............................................. 11

II. How Does a Court Determine

Ambiguity? That is Ambiguous. ..................... 15

A. Early Post-Chevron Cases Took an

Inconsistent Approach to

“Ambiguity.” ............................................... 15

B. Chevron Deference Expands to New

Circumstances and New

Justifications.............................................. 19

C. This Court Has Not Deferred Under

Chevron in the Past Seven Years. ............. 24

III.Failure to Overrule Chevron Would

Prolong Inconsistent Applications in

the Circuits ...................................................... 27

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams Fruit Co. v. Barrett, 494 U.S. 638

(1990) ................................................................ 18, 19

Am. Hosp. Ass'n v. Becerra, 142 S. Ct. 1896

(2022) ...................................................................... 24

Becerra v. Empire Health Found., 142 S. Ct.

2354 (2022) ............................................................. 24

BNSF v. Loos, 139 U.S. 893 (2019) ........................... 24

Buffington v. McDonough, 143 S. Ct. 14

(2022) ............................................................ 2, 29, 30

Chevron v. Nat. Res. Def. Council, 467 U.S.

837 (1984) ....................... 2, 10, 11, 12, 13, 14, 15, 16

Cuozzo Speed Tech., LLC v. Lee, 579 U.S. 261

(2016) ...................................................................... 23

Dole v. United Steelworkers, 494 U.S. 26

(1990) ................................................................ 17, 18

Edwards’ Lessee v. Darby, 25 U.S. (12

Wheat.) 206 (1827) ................................................... 7

Gen. Dynamics Land Sys., Inc., v. Cline, 540

U.S. 581 (2004) ....................................................... 21

Gray v. Powell, 314 U.S. 402 (1941) ...................... 9, 10

Holder v. Gutierrez, 566 U.S. 583 (2012) .................. 23

Holly Farms Corp. v. NLRB, 517 U.S. 392,

401 (1996) ............................................................... 20

Immigr. & Naturalization Serv. v. CardozaFonseca, 480 U.S. 421 (1987) ..................... 15, 16, 17

iv

King v. Burwell, 576 U.S. 473 (2015) ........................ 29

Merritt v. Cameron, 137 U.S. 542 (1890) .................... 7

Michigan v. E.P.A., 576 U.S. 743 (2015) ..................... 4

Negusie v. Holder, 555 U.S. 511 (2009)............... 22, 23

NLRB v. Hearst Publ’ns, 322 U.S. 111 (1944) ...... 9, 10

Pauley v. Bethenergy Mines, 501 U.S. 680

(1991) ................................................................ 19, 20

Payne v. Tennessee, 501 U.S. 808 (1991)................... 26

Pugin v. Garland, No. 22-23, slip op. (June

22, 2023) ................................................................. 25

SAS Inst. v. IANCU, 138 U.S. 1348 (2018) ............... 24

Schell v. Fauché, 138 U.S. 562 (1891) ......................... 8

Skidmore v. Swift & Co., 323 U.S. 134 (1944)

............................................................................ 9, 10

Smiley v. Citibank (South Dakota), N.A., 517

U.S. 735 (1996) ....................................................... 20

Smith v. City of Jackson, 544 U.S. 228 (2005)

................................................................................ 21

Stevens v. Duckworth, 145 Engl. Rep. 486

(1664) ........................................................................ 6

Sullivan v. Everhart, 494 U.S. 83 (1990) .................. 18

The “City of Panama,” 101 U.S. 453 (1879) ................ 7

United States ex rel. Dunlap v. Black, 128

U.S. 40 (1888) ........................................................... 9

United States v. Haley, 160 U.S. 136 (1895) ............... 8

United States v. Mead, 533 U.S. 218 (2001) ............. 29

United States v. Shimer, 367 U.S. 374 (1961) .......... 14

v

Vieth v. Jubelirer, 541 U.S. 267 (2004) ..................... 26

West Virginia v. EPA, 142 S. Ct. 2587 (2022) ........... 29

Zuni Pub. Sch. v. Dept. of Educ., 550 U.S. 81

(2007) ...................................................................... 22

Statutes

16 U.S.C. § 1853 (1996) ............................................... 3

Jurisdiction and Removal Act of 1875, Ch.

137, § 1, 18 Stat. 470 (1875) .................................... 9

Other Authorities

2 Annals of Cong. 1945–46 (1791) ............................... 7

A DISCOURSE UPON THE EXPOSICION AND

UNDERSTANDINGE OF STATUTES WITH SIR

THOMAS EGERTON’S ADDITIONS (Samuel E.

Thorne ed., 1942)...................................................... 6

Aditya Bamzai, Judicial Deference and

Doctrinal Clarity, 82 OHIO ST. L.J. 585

(2021) ...................................................................... 11

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation, 126

YALE L.J. 908 (2017) ........................................ 6, 8, 9

Ann Woolhandler, Judicial Deference to

Administrative

Action—A

Revisionist

History, 43 ADMIN. L. REV. 197 (1991) ................ 8, 9

Brett

Kavanaugh,

Fixing

Statutory

Interpretation, 129 HARV. L. REV. 2118

(2016) ................................................................ 19, 29

Brian R. Stimson, et al., Pending Supreme

Court Decision in AHA v. Becerra May be

Felt Well Beyond the Healthcare Industry,

12 NAT. L. REV. 46 (Feb. 15, 2022) ......................... 24

vi

Charles J. Cooper, The Flaws of Chevron

Deference, 21 TEX. REV. L. & POL. 307

(2016) ........................................................................ 4

Circuit Court of Appeals Opinions Analyzing

and Applying Chevron, CATO INST. ....................... 28

Craig Green, Chevron Debates and the

Constitutional

Transformation

of

Administrative Law, 88 GEO. WASH. L.

REV. 654 (2020) ........................................................ 5

Decatur v. Paulding, 39 U.S. (14 Pet.) 497

(1840) ........................................................................ 9

Douglas H. Ginsburg & Steven Menashi, Our

Illiberal Administrative Law, 10 N.Y.U.

J.L. & LIBERTY 475 (2016) ........................................ 4

Eli Nachmany, SCOTUS Faces a Chevron

Decision Tree in American Hospital

Association v. Becerra, YALE J. ON REG.

NOTICE & COMMENT (Aug. 9, 2021) ....................... 24

Gary Lawson & Stephen Kam, Making Law

out of Nothing at All: The Origins of the

Chevron Doctrine, 65 ADMIN. L. REV. 1

(2013) ...................................................................... 14

Isaiah McKinney, At the Supreme Court,

Chevron Deference Has Morphed into the

Application of the Tools of Construction,

YALE J. ON REG. NOTICE & COMMENT (Jan.

9, 2023) ................................................................... 30

Isaiah McKinney, The Chevron Ball Ended at

Midnight, but the Circuits are Still TwoStepping by Themselves, YALE J. ON REG.

NOTICE & COMMENT (Dec. 18, 2022) ...................... 25

vii

John Paul Stevens & Linda Greenhouse, A

Conversation with Justice Stevens, 30 YALE

L. & POL. REV. 303 (2012) ...................................... 11

Jonathan H. Adler, Restoring Chevron’s

Domain, 81 MO. L. REV. 983 (2016) ......................... 4

Katie Keith & Joseph Wardenski, Supreme

Court Hears Two Medicare Disputes, GEO.

O’NEIL INST. (Dec. 9, 2021) .................................... 24

Kent H. Barnett & Christopher J. Walker,

Chevron in the Circuit Courts, 116 MICH. L.

REV. 1 (2017) .......................................................... 27

Linda Greenhouse, Court Upholds Reagan on

Air Standard, N.Y. TIMES, June 26, 1984. .............. 2

Peter M. Shane & Christopher J. Walker,

Foreword: Chevron at 30: Looking Back

and Looking Forward, 83 FORDHAM L. REV.

475 (2014) ............................................................... 14

Philip Hamburger, Chevron Bias, 84 GEO.

WASH. L. REV. 1187 (2016) ....................................... 4

Thomas W. Merrill, Article III, Agency

Adjudication, and the Origins of the

Appellate Review Model of Administrative

Law, 111 COLUM. L. REV. 939 (2011) ....................... 9

THOMAS W. MERRILL, THE CHEVRON

DOCTRINE (2022)........................... 4, 6, 10, 11, 14, 15

Transcript of Oral Argument, Am. Hosp.

Ass’n v. Becerra, 142 S. Ct. 1896 (2022) ................ 25

Transcript of Oral Argument, Becerra v.

Empire Health Found., 142 S. Ct. 2354

(2022) ...................................................................... 25

viii

William N. Eskridge, Jr. & Lauren E. Baer,

The Continuum of Deference, GEO. L.J.

1083 (2008) ............................................................... 5

Regulations

85 Fed. Reg. 7,414 (Feb. 7, 2020) ................................ 3

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies helps restore

the principles of constitutional government that are

the foundation of liberty. Toward those ends, Cato

publishes books and studies, files amicus briefs, conducts conferences, and produces the annual Cato Supreme Court Review.

Founded in 2002, the Committee for Justice

(“CFJ”) is a nonprofit, nonpartisan legal and policy organization dedicated to preserving both the Constitution’s limits on governmental power and its separation

of powers. Central to that mission is ensuring that administrative agencies like the U.S. Department of

Commerce interpret rather than rewrite federal statutes and that the federal courts push back against, rather than defer to, agencies when they exceed their

proper role. CFJ files amicus curiae briefs in key cases,

supports constitutionalist nominees to the federal judiciary, and educates the American public and policymakers.

This case interests amici because Chevron deference undermines the separation of powers, and the

separation of powers is one of the fundamental constitutional protections against government overreach.

SUMMARY OF ARGUMENT

On June 26, 1984, the New York Times ran a

story on page A8 about an administrative law opinion

1 Rule 37 statement: No party’s counsel authored this brief in

any part and amici alone funded its preparation and submission.

2

issued by this Court the previous day. The ninth paragraph of that article noted that the opinion “contained

broad language on the need for courts to defer to

agency interpretations of ambiguous statutes, language that is likely to find its way into future administrative law rulings on subjects far removed from the

Clean Air Act.”2 Fifteen thousand citations later, this

prediction can now safely be characterized as an understatement.

The Chevron doctrine had ostensibly innocent beginnings. This Court’s opinion framed Chevron deference not as a watershed, but instead as merely the natural extension of preexisting statutory canons of construction. See Chevron v. Nat. Res. Def. Council, 467

U.S. 837, 843 n.9 (1984); Buffington v. McDonough,

143 S. Ct. 14, 17–18 (2022) (Gorsuch, J., dissenting

from denial of cert.). It is now clear, however, that

Chevron deference is fundamentally unlike anything

that came before. It is unconstitutional and ahistorical. And not only was Chevron unconstitutional when

it was penned, over the past forty years its constitutional problems have only grown—now it is a doctrine

of reactionary deference, rather than the last-resort interpretive method the Court originally envisioned.

Over these years, Chevron has wreaked havoc in the

lower courts upon people and businesses.

One such business is Loper Bright Enterprises.

Loper Bright and the other petitioners in this case are

herring fishers who face significant financial hardships under new regulations issued under the supposed authority of the Magnuson-Stevens Act (“MSA”).

Pet. at 7. The MSA divided the nation’s fisheries into

2 Linda Greenhouse, Court Upholds Reagan on Air Standard,

N.Y. TIMES, June 26, 1984, at A8.

3

several regions, each with a “fishery management

council” tasked with creating a “fishery management

plan” for that region. Id. at 3–4. Per the MSA, these

“fishery management plans ‘may require that one or

more observers be carried on board a [fishing] vessel.’”

Id. at 4; 16 U.S.C. § 1853(b)(8) (1996).

In 2020, the National Marine Fisheries Service

(“NMFS”) invoked this authority to require “industry

funded monitoring” of catch amounts for vessels fishing in New England waters. Pet. at 8–9; 85 Fed. Reg.

7,414 (Feb. 7, 2020). This regulation financially harms

commercial fishers in multiple ways. For example,

they must make room on a crowded vessel to carry a

monitor, which takes up valuable working space and

adds costly weight. Pet. at 24. Even more onerously,

they must pay the monitor’s wages. Id. at 10. This can

cost up to $710 a day and is expected to reduce their

profits by 20%. Id. Those who refuse to pay for monitors are prohibited from fishing for herring. Id.

The petitioners sued, but the district court upheld

the agency’s regulation as within NMFS’s authority to

“require that one or more observers be carried on

board.” Id. at 10–11. Although the court of appeals affirmed, it relied on a different rationale. The panel

held that the MSA was ambiguous as to whether fishing operations could be forced to pay the cost of their

own monitoring. But the panel concluded that NMFS’s

interpretation of the statute was a reasonable one. The

court therefore held for the government at “Step Two”

of the Chevron Doctrine. Id. at 12–13.

It is time for this Court to overrule Chevron, and

this is the case to do it. The judicial deference that

Chevron mandates is incompatible with the Constitution’s design for at least three reasons.

4

First, Chevron deference violates the separation

of powers by depriving the judiciary of its Article III

judicial power. See Michigan v. E.P.A., 576 U.S. 743,

761 (2015) (Thomas, J., concurring) (“Chevron deference precludes judges from exercising [independent]

judgment, forcing them to abandon what they believe

is ‘the best reading of an ambiguous statute’ in favor

of an agency’s construction.”) (citation omitted); see

also Douglas H. Ginsburg & Steven Menashi, Our Illiberal Administrative Law, 10 N.Y.U. J.L. & LIBERTY

475, 506–07 (2016).

Second, Chevron deference rests on the premise

that Congress can delegate Article III power to a federal agency. See Charles J. Cooper, The Flaws of Chevron Deference, 21 TEX. REV. L. & POL. 307, 310–11

(2016). But Congress does not have any Article III

power, and it cannot delegate a power that it does not

have to begin with. Id.

And third, Chevron violates due process. Under

Chevron, courts favor the agency’s interpretation

merely because it is the agency’s interpretation. And

when courts put a thumb on the scale to give an

agency’s interpretation more weight, courts necessarily give a challenger’s opposing interpretation less

weight. For that reason, the challenger is denied an

impartial adjudication, which is the core of due process. Philip Hamburger, Chevron Bias, 84 GEO. WASH.

L. REV. 1187, 1211–13 (2016).

When it comes to Chevron, the Court should not

take half measures, as some suggest. See THOMAS W.

MERRILL, THE CHEVRON DOCTRINE 261–68 (2022); Jonathan H. Adler, Restoring Chevron’s Domain, 81 MO.

L. REV. 983, 987–94 (2016); William N. Eskridge, Jr. &

Lauren E. Baer, The Continuum of Deference, GEO.

5

L.J. 1083, 1179–96 (2008). History shows that any new

version of Chevron deference would still be unworkable.

Chevron has evolved continuously over the past

39 years: The Chevron test of 1984 is not the same test

that has been applied across the decades since. Chevron has become a Leviathan that the Chevron Court

never dreamed of. Rather than applying interpretive

tools to find the meaning of statutory text, as Chevron

itself instructed, courts use Chevron as an excuse to

quickly defer. And courts have struggled to apply

Chevron consistently. Even as this Court has narrowed the circumstances in which deference applies,

the test has remained too underdetermined to be applied consistently. History has shown that no matter

how Chevron is adjusted, it will remain too unworkable to be salvaged. The Court should end the failed

four-decade Chevron experiment.

ARGUMENT

I.

Chevron Deference Was Unprecedented

A. The Pre-Chevron Cases

Defenders of Chevron often claim that courts

have deferred to agencies going as far back as the nineteenth century. See, e.g., Craig Green, Chevron Debates and the Constitutional Transformation of Administrative Law, 88 GEO. WASH. L. REV. 654, 679–80

(2020). But that is misleading. Nineteenth-century

courts referenced the executive’s legal interpretations

as persuasive authority in certain situations, but that

was a far cry from Chevron deference. Through the

early twentieth century, courts looked to agency interpretations when applying two canons called the “contemporaneous”

and

“customary”

canons

of

6

construction.3 Neither of these two canons were comparable to Chevron deference, and neither provides a

historical precedent for Chevron deference. See Aditya

Bamzai, The Origins of Judicial Deference to Executive

Interpretation, 126 YALE L.J. 908, 933–38 (2017); MERRILL, CHEVRON DOCTRINE, supra, at 34.

First, the “contemporaneous” canon held that

ambiguous statutes should be interpreted as they were

interpreted contemporaneously with the statute’s enactment. This canon traces its roots as far back as the

fifteenth century, when one treatise held that the most

persuasive authorities were those written nearest in

time to a statute’s enactment. See A DISCOURSE UPON

THE EXPOSICION AND UNDERSTANDINGE OF STATUTES

WITH SIR THOMAS EGERTON’S ADDITIONS 151 (Samuel

E. Thorne ed., 1942).

Second, the “customary” canon held that ambiguous texts should be interpreted as they have been over

a long course of time. This canon can be traced back to

third-century Roman law. Bamzai, Origins, supra, at

937 n.113. And this canon also was applied in the English common law. See, e.g., Stevens v. Duckworth, 145

Engl. Rep. 486, 487 (1664) (“[T]he reason of a law, and

the design, of the law-makers, must be judged of by

what has been the constant practice ever since . . . .”).

Together, these two canons looked to prior interpretation and past usage to determine the meaning of

statutes. Several American Founders, including Hamilton and Madison, acknowledged and applied these

canons when interpreting statutes. See, e.g., 2 Annals

3 See Brief for Cato Institute and Liberty Justice Center as

Amici Curiae Supporting Petition for Writ of Certiorari at 5–16,

Loper Bright Enterprises v. Raimondo, (No. 22-451) (filed Dec. 9,

2022).

7

of Cong. 1945–46 (1791); Bamzai, Origins, supra, at

938–41.

This Court also frequently applied these canons

in the nineteenth century. For example, in Edwards’

Lessee v. Darby, the Court explained that in “the construction of a doubtful and ambiguous law, the cotemporaneous construction of those who were called upon

to act under the law, and were appointed to carry its

provisions into effect, is entitled to very great respect.”

25 U.S. (12 Wheat.) 206, 210 (1827). The Court gave

substantial weight to the agency’s contemporaneous

interpretation of the statute, especially since the legislature had affirmed that interpretation shortly thereafter. Id. at 209–10. Crucially, the Court gave credence

to the agency’s interpretation because it was contemporaneous and consistently held, not simply because it

was the agency’s. See id. at 210.

This Court further emphasized the distinction between consistent and inconsistent agency interpretations in another nineteenth century case, Merritt v.

Cameron, 137 U.S. 542 (1890). In Merritt, the Court

declined to give any special recognition or deference to

an executive department’s legal interpretation. The interpretation had not been adopted until twelve years

after the statute was enacted, and it had been abandoned by the executive five years prior to the case. Id.

at 552. As the Court explained, an executive interpretation only deserved “conclusive and binding” status if

it was “the contemporaneous construction” and had

been “continuously in force for a long time.” Id.

Courts regularly applied these canons during the

late nineteenth century. See, e.g., The “City of Panama,” 101 U.S. 453, 461 (1879) (concluding that the

“rule is universal that the contemporaneous

8

construction of such a statute is entitled to great respect,” especially when that interpretation “has prevailed for a long period”); Schell v. Fauché, 138 U.S.

562, 572 (1891) (emphasizing that the contemporaneous construction of “the officials whose duty it is to

carry the law into effect, is universally held to be controlling”). But courts also recognized the limits of these

canons. In United States v. Haley, the Court rejected

the Department of the Interior’s interpretation because the Department’s view had been inconsistent.

160 U.S. 136 (1895). It was therefore the Court’s “duty

to determine the true interpretation of the [statute],

without reference to the practice in the department.”

Id. at 145.

In none of these cases did the Court “defer” to the

executive branch because of the executive’s expertise

or because of its mere status as the executive. Rather,

the Court respected the consistently held, contemporaneous interpretations of the executive branch. If the

executive branch’s interpretation was neither long

held nor contemporaneous, the Court applied its own

judgment. Courts thus required that the executive’s

interpretation be much more than just “reasonable” to

merit deference. See Bamzai, Origins, supra, at 930–

65.

With some exceptions, courts generally applied

these two canons into the early twentieth century. Id.

at 968–69. One of these exceptions was in the mandamus cases, where courts applied a more deferential

form of review due to the unusual cause of action of a

writ of mandamus. Ann Woolhandler, Judicial Deference to Administrative Action—A Revisionist History,

43 ADMIN. L. REV. 197, 209 (1991). Between 1805 and

1875 there was no general federal jurisdiction to review agency actions. Plaintiffs’ main recourse against

9

unlawful executive action was to file a writ of mandamus requesting that the executive either perform a required act or stop performing an offending act. See

Bamzai, Origins, supra, at 950–51; see also Thomas W.

Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative

Law, 111 COLUM. L. REV. 939, 947 (2011).

Starting in 1840 with Decatur v. Paulding, writs

of mandamus were reviewed deferentially, and courts

could not second-guess executive actions when the executive was given discretion by law. 39 U.S. (14 Pet.)

497, 515 (1840). But this deferential review was limited to mandamus actions; deference was only given

because of the unusual nature of that cause of action.

See Bamzai, Origins, supra, at 958. Other actions were

still reviewed de novo. See United States ex rel. Dunlap

v. Black, 128 U.S. 40, 48 (1888). Once general federal

jurisdiction was instituted under the Jurisdiction and

Removal Act of 1875, mandamus actions mostly

ceased. See Ch. 137, § 1, 18 Stat. 470, 470 (1875) (codified as amended at 28 U.S.C. § 1331). Courts then returned to reviewing executive interpretations de novo

and applying the contemporaneous and customary

canons. Bamzai, Origins, supra, at 955; Woolhandler,

supra, at 239.

But in the early-to-mid-twentieth century, this

Court moved away from applying these canons and instead began giving deferential weight to agency interpretations even when they were not contemporaneous

or long held. This period was defined by three cases:

Gray v. Powell, 314 U.S. 402 (1941), NLRB v. Hearst

Publ’ns, 322 U.S. 111 (1944), and Skidmore v. Swift &

Co., 323 U.S. 134 (1944).

10

First, in 1941, the Court upheld an agency’s interpretation of coal “producer” because Congress had

delegated that authority to experts. Gray, 314 U.S. at

411–12. The Court refused to “substitute its judgment

for that of the [agency].” Id. The dissent, however, argued that it was the role of the Court to review the

agency’s statutory interpretation and that the Court

was abdicating its duty by accepting the agency’s interpretation. Id. at 420 (Roberts, J., dissenting).

The Court’s deferential approach continued in

1944 in National Labor Relations Board v. Hearst Publications, where the Court explained that the specific

application of statutory terms was left to agencies, not

courts. 322 U.S. at 131. Emphasizing the agency’s expertise, the Court held that the agency’s definition was

“to be accepted if it ha[d] ‘warrant in the record’ and a

reasonable basis in law.” Id. at 131.

Also in 1944, the Court deferred, or in its words

gave “respect,” to an agency’s statutory interpretation

after finding that it was reasonable. Skidmore, 323

U.S. at 140. Skidmore deference is often considered

“persuasive deference” because its balancing test is not

binding—courts may defer but are not required to. See

MERRILL, CHEVRON DOCTRINE, supra, at 44.

Ultimately, the new type of deference exemplified in these three cases would culminate decades later

in Chevron v. Natural Resources Defence Council.

This overview of nineteenth and early twentiethcentury cases shows that Chevron deference is not a

creature of history. It was not until the mid-twentieth

century and the rise of the administrative state that

courts truly deferred on legal interpretations. Prior to

the mid-twentieth century, courts simply applied canons of construction that gave weight to the customary

11

and contemporaneous interpretation of the executive

branch. Chevron is ahistorical and should be overruled.4

B. Chevron Itself

In 1984, Justice Stevens authored this Court’s

opinion in Chevron, which was an accidentally revolutionary decision. See John Paul Stevens & Linda

Greenhouse, A Conversation with Justice Stevens, 30

YALE L. & POL. REV. 303, 315 (2012).

Chevron involved the Environmental Protection

Agency’s (“EPA’s”) interpretation of the Clean Air Act

(“CAA”). Chevron, 467 U.S. at 840. The CAA required

permits for “new or modified major stationary sources”

of air pollutants. Id. The EPA issued a regulation that

treated each plant as a single “stationary source.” This

allowed owners to construct or modify buildings within

a plant without a permit, so long as the total pollution

emitted by the whole plant did not increase. Id. This

was referred to as the “bubble” concept. Id.

The EPA’s regulation was challenged in the D.C.

Circuit, which set aside the regulation as “inappropriate” and contrary to the statute’s purpose. See id. at

841; MERRILL, CHEVRON DOCTRINE, supra, at 59. The

Supreme Court reversed, holding that the agency’s

“bubble” interpretation was permissible under the

statute. Chevron, 467 U.S. at 866.

The Court’s statutory interpretation began with

the most famous part of the opinion—the two-step

4 Once overruled, there are multiple interpretive rules that could

replace Chevron. One such option would be to apply the contemporaneous and customary canons once again, especially to agencies’ legal interpretations. See Aditya Bamzai, Judicial Deference

and Doctrinal Clarity, 82 OHIO ST. L.J. 585, 594–98 (2021).

12

standard of review for agencies’ legal interpretations.

Under this standard, a court must first consider “the

question whether Congress has directly spoken to the

precise question at issue.” Id. at 842. This first question should be “the end of the matter” if “the intent of

Congress is clear,” because courts “must give effect to

the unambiguously expressed intent of Congress.” Id.

at 842–43. At this stage, courts must employ “the traditional tools of construction” to ascertain whether

“Congress had an intention on the precise question at

issue.” Id. at 843 n.9.

It was the second step, however, that would make

Chevron a landmark case. If a court finds that “Congress has not directly addressed the precise question

at issue,” then the agency’s interpretation can become

determinative. Id. at 843. In this situation, Chevron

instructed that a court should “not simply impose its

own construction on the statute, as would be necessary

in the absence of an administrative interpretation.” Id.

Instead, courts should ask “whether the agency’s answer is based on a permissible construction of the statute.” Id. If the answer is yes, the court must defer.

But after laying out this seemingly revolutionary

test, the Court proceeded with a statutory analysis

that was surprisingly typical of its time. The Court

first examined the statutory text, but it concluded that

“the language of [the statute] simply” did not “compel

any given interpretation of the term ‘source.’” Id. at

859–60. The Court then turned to the definition of

“stationary source” as used in a different statutory provision, because that usage shed “as much light on the

meaning . . . as anything in the statute.” Id. at 860.

But even this evidence was unhelpful, because the

“meaning of a word must be ascertained in the context

of achieving particular objectives.” Id. at 861. The

13

Court next turned to the legislative history, but that

was also “unilluminating.” Id. at 862–63.

The Court finally concluded that the “language

may be reasonably interpreted” the way the agency

had interpreted the statute. The Court found that this

interpretation accorded with Congress’s discernible intent. Id. at 861–62.

The challengers had argued that the agency’s interpretation should not receive any deference because

the agency had been inconsistent. Id. at 863. This argument was understandable, since consistency had

previously been necessary for agencies to benefit from

the “customary” canon. But the Court held that consistency was no longer necessary for agencies to receive deference. Interpretations are “not instantly

carved in stone,” the Court maintained, and agencies

should be allowed the flexibility to pivot in “technical

and complex area[s].” Id. at 863–64. Even though the

agency had flipped its interpretation when the White

House had flipped parties, the Court dismissed the

agency’s initial Carter-era interpretation as merely acquiescence to the D.C. Circuit, which had read the

statute inflexibly in a prior case. Id. at 853–58, 864.

The Court concluded that the agency had not truly

changed its own independent interpretation of the

statute. Id. at 865.

The Court ended its opinion with a rhetorical defense of judicial deference to the executive: Since Congress did not address the specific question at issue,

that statutory gap should be filled by the branch with

the next most political accountability. The executive

branch had more political accountability and more expertise than the judiciary, which doubly justified deference in the eyes of the Court. Id. at 865.

14

Chevron was an accidental revolution, because

the approach that the Court actually applied did not

match the radical language of the test Chevron laid

out. This is the irony of Chevron: it is famous for its

two-step test, but the opinion itself did not follow this

new test. Instead, the Court applied deference that

looked very similar to other then-recent cases. For example, Chevron quoted from United States v. Shimer,

367 U.S. 374, 383 (1961), which stated that courts

“should not disturb [the agency’s choice] unless it appears from the statute or its legislative history that the

accommodation is not one that Congress would have

sanctioned.” The Chevron Court similarly analyzed the

text and legislative history before turning to the

agency’s interpretation and finding it to be reasonable.

Chevron, 467 U.S. at 859–63. See MERRILL, CHEVRON

DOCTRINE, supra, at 55–56, 71–72, 79.

Although Chevron did not immediately break new

ground in its interpretive approach, its language

would nonetheless revolutionize administrative law

and make Chevron this Court’s most cited administrative law decision. See Gary Lawson & Stephen Kam,

Making Law out of Nothing at All: The Origins of the

Chevron Doctrine, 65 ADMIN. L. REV. 1, 1–5 (2013); Peter M. Shane & Christopher J. Walker, Foreword:

Chevron at 30: Looking Back and Looking Forward, 83

FORDHAM L. REV. 475, 475 (2014). In hindsight, Chevron was unlike the other deferential cases of the earlyto-mid-twentieth century because the Court’s language created a binding rule for analyzing agency interpretations. MERRILL, CHEVRON DOCTRINE, supra, at

72–73. Chevron was not the first time the Court had

given weight to an agency’s interpretation because it

was reasonable and permissible under the statute. See

Shimer, 37 U.S. at 883; MERRILL, CHEVRON DOCTRINE,

15

supra, at 72–73. But Chevron transformed this principle into a mandatory rule, instructing lower courts

that they must defer if an agency’s interpretation lies

anywhere within reasonable bounds.

The second part of the Chevron two-step test was

unconstitutional, but its damage would have been limited if courts had faithfully applied the tools of construction before reaching that step, as instructed and

demonstrated in the opinion itself. Chevron, 467 U.S.

at 843 n.9. But as subsequent history shows, that did

not happen.

II. How Does a Court Determine Ambiguity?

That is Ambiguous.

In the decades following Chevron, this Court has

struggled to consistently determine when a statute is

ambiguous and when to instead apply the traditional

tools of construction and reach an independent judgment. This history shows that no matter what test the

Court has attempted to formulate, the definition of an

“ambiguous” statute has itself remained hopelessly

ambiguous.

A. Early Post-Chevron Cases Took an

Inconsistent Approach to “Ambiguity.”

One of the first major cases applying Chevron was

Immigration and Naturalization Service v. CardozaFonseca, 480 U.S. 421 (1987). The question was

whether the “well-founded fear” and “clear probability” standards were the same under the Immigration

and Nationality Act. Id. at 445–46. Justice Stevens

again wrote the Court’s opinion, but this time the

Court did not defer. Quoting Chevron’s reference to the

“traditional tools of statutory construction,” the Court

16

employed those traditional tools to determine Congress’s intent. Id. at 448.

Looking at the “plain language” of the statute,

parallels with other statutes, and the legislative history, the Court determined that the statute was unambiguous and that the standards were not the same. Id.

at 449–50. Even though the term “well-founded fear”

may have been ambiguous, the Court was not tasked

with defining that term; the Court only had to decide

whether the two standards were identical. Id. at 448.

The Court thus declined to defer under Chevron because applying the canons of construction answered

the “precise question at issue.” See Chevron, 467 U.S.

at 843 n.9.

Justice Scalia, concurring in the judgment, critiqued the majority’s discussion of Chevron, arguing

that since the statute was unambiguous, the discussion of Chevron was superfluous. Cardoza-Fonseca,

480 U.S. at 452–54 (Scalia, J., concurring in the judgment). Justice Scalia further claimed that Justice Stevens, writing for the majority, had misinterpreted his

own majority opinion in Chevron. Id. at 453–54.

Justice Scalia interpreted Chevron to require

“that courts must give effect to a reasonable agency interpretation of a statute unless that interpretation is

inconsistent with a clearly expressed congressional intent.” Id. at 454. Justice Scalia thought language in the

Cardoza-Fonseca majority opinion was “flatly inconsistent with this well-established interpretation.” Id.

In Justice Scalia’s view, the majority had wrongly implied “that courts may substitute their interpretation

of a statute for that of an agency whenever, employing

traditional tools of statutory construction, they are

able to reach a conclusion as to the proper

17

interpretation of the statute.” Id. (quotation marks

and brackets omitted). Justice Scalia found this characterization of the scope of Chevron deference to be too

narrow, “authorizing courts to defer only if they would

otherwise be unable to construe the enactment at issue.” Id.

What is the difference between Justice Scalia’s

view of Chevron and the Cardoza-Fonseca majority’s

view? It is the difference between a statute that has an

“unambiguously expressed intent” and a statute that

falls short of this standard but that nonetheless gives

a court enough clues “to reach a conclusion as to the

proper interpretation.” Id. at 454. In Justice Scalia’s

view, deference was required for all interpretations of

statutes except those which fell in the former category.

Justice Scalia believed that declining to defer to interpretations in the latter category would “eviscerat[e]”

Chevron and “make deference a doctrine of desperation.” Id.

Three years later in Dole v. United Steelworkers,

the Court again refused to defer and instead applied

the tools of construction. 494 U.S. 26, 34–35 (1990).

Applying the textual canons, the Court narrowed down

the possible interpretations to only two, one of which

was the agency’s. But the Court concluded that the

agency’s interpretation was “counterintuitive and contrary to clear legislative history,” and the Court thus

chose the other interpretation. Id. at 40.

Justice White dissented, arguing that the text of

the statute could not have been so clear as to foreclose

deference because the Court needed ten pages to explain why the text was unambiguous. Id. at 43 (White,

J., dissenting). Justice White further highlighted the

Court’s apparent acknowledgement that the agency’s

18

interpretation was a reasonable one. The majority had

called the agency’s interpretation “not the most natural reading of this language,” but a reading that is “not

the most natural” can still fall within the bounds of

permissibly reasonable interpretations. Id. at 44–45

(White, J., dissenting).

Once again, a dissent made a compelling argument that Chevron deference would have been appropriate if Chevron’s broadest language were read literally. But once again, a majority of the Court declined

to defer and instead applied the tools of statutory construction to decide the case.

That same term, in Sullivan v. Everhart, the

Court again addressed how courts should define ambiguity. 494 U.S. 83 (1990). Justice Scalia, writing for

the majority, determined that the agency’s interpretation was not “an inevitable interpretation of the statute,” but it was “assuredly a permissible one,” and for

that reason the Court deferred. Id. at 93.

Justice Stevens dissented, explaining that the

Court needed to apply the canons of construction more

rigorously prior to deferring under Chevron. Id. at 103

(Stevens, J., dissenting). Justice Stevens insisted that

it was unnecessary for Congress to “express its intent

as precisely as would be possible” in order for the statute to be unambiguous. Id. at 106. Justice Stevens suggested that the text of the statute at issue may have

not explicitly precluded the agency’s interpretation because Congress simply never envisioned the agency

making such an interpretation. Id. at 104–06.

However, the Court’s approach to Chevron swung

back again that same term in Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990). In that case, the majority explained that Chevron deference is not warranted just

19

because a statute fails to speak to every potential issue

or address all possible interpretations. Id. at 649. The

tension between this approach and the approach in

Sullivan was notable. While Sullivan had held a statute to be ambiguous because it did not preclude the

government’s interpretation, Adams Fruit held a statute to be unambiguous even though it did not explicitly

address every potential interpretation.

In one term alone, the Court wavered in its approach to “ambiguity” across three cases. This inconsistency in defining ambiguity demonstrates how hard

it is for judges to firmly define ambiguity and how individual judges themselves can fluctuate in their own

analysis. See Brett Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, 2134–44 (2016).

B. Chevron Deference Expands to New

Circumstances and New Justifications.

The next several years would see the Court expand Chevron deference to situations that were likely

unforeseen in 1984. In Pauley v. Bethenergy Mines, 501

U.S. 680 (1991), the Court again deferred under Chevron. But remarkably, the Court’s opinion did not find

that the statute could be read multiple ways or that

the statute was “ambiguous.” Instead, the Court held

that the statute had implicitly mandated interpretive

deference for the agency.

The statute at issue required that new agency

regulations “not be more restrictive than” certain interim regulations that had already been promulgated

by another agency. Id. at 697–98. The Court held that

this provision implicitly delegated authority to the

agency to interpret those interim regulations and determine just how restrictive they were.

20

This was necessary, the Court held, for the

agency to determine the scope of its own authority. Id.

at 698. Instead of deferring because the statute was

ambiguous, the Court thus deferred because it saw an

express Congressional mandate to defer. This not only

gave the agency authority to gap fill, but also to determine how large those gaps were.

In Holly Farms Corp. v. National Labor Relations

Board, the Court determined that the petitioner’s interpretation was “a plausible, but not an inevitable,

construction” of the statute. 517 U.S. 392, 401 (1996).

The Court only spent three sentences analyzing the

statute and Holly Farms’ interpretation before turning

to the agency’s interpretation and applying Step Two.5

Id. at 401. Like in Sullivan, the Court broadly applied

Chevron deference and ignored Chevron’s own command to apply all the tools of construction first. Justice

O’Connor dissented and critiqued the majority for

spending “the bulk of its opinion” analyzing reasonableness but giving “remarkably short shrift to the statute itself.” Id. at 410 (O’Connor, J., dissenting).

The Court offered a similarly sparse analysis in

Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735

(1996). The Court held that a statute was ambiguous

because two state supreme courts had interpreted the

statute differently. Because of these two courts’ different interpretations, the Court opined that “it would be

difficult indeed to contend that the word” in the statute was “unambiguous with regard to the point at issue here.” Id. at 739. The Court did not apply the tools

of construction to find the statute’s meaning, but

5 It was four sentences if a footnote responding to the dissent

is included. Id. at 399 n.6.

21

instead only relied on this split decision as nearly conclusive evidence of ambiguity.

The Court returned to the canons of construction,

however, in General Dynamics Land Systems, Inc., v.

Cline, 540 U.S. 581 (2004). The Court explained that

under Chevron and Cardoza-Fonseca, “deference to [an

agency’s] statutory interpretation is called for only

when the devices of judicial construction have been

tried and found to yield no clear sense of congressional

intent.” Id. at 600. The Court declined to defer because

the agency’s interpretation was “clearly wrong.” Id. at

600. The Court found that “regular interpretive

method leaves no serious question, not even about

purely textual ambiguity in the [statute].” Id. Like in

Cardoza-Fonseca, and unlike in Holly Farms and Smiley, the Court applied the traditional interpretive tools

and did not defer. The Court continued shifting from

case to case on whether and when to apply the tools of

construction.

In Smith v. City of Jackson, the Court did not

even cite Chevron. 544 U.S. 228 (2005). The majority

applied the canons of construction—including the customary canon—and looked at the text, precedent, and

the regulations at issue. Id. at 233–40. Justice Scalia

concurred in part and concurred in the judgment, calling Smith a “classic case for deference,” because the

agency promulgated the rule at issue under explicit

Congressional authority, and the agency’s rule was

“reasonable.” Id. at 243–44 (Scalia, J., concurring in

the judgment). Justice Scalia cited the long-held nature of the agency’s interpretation as evidence of the

interpretation’s reasonableness. Id. at 244.

Two years later, Zuni Public School v. Department of Education raised a novel question concerning

22

the order in which to apply the Chevron steps. 550 U.S.

81 (2007). Justice Breyer’s opinion for the Court essentially reversed the order of the Chevron steps, holding

that the agency’s interpretation was reasonable before

turning to whether the statute was ambiguous. Id. at

90. The Court held that the “background and basic

purposes” of the statute gave “unusually strong indications that Congress intended to leave the Secretary

free” to interpret the statute as the agency had. Id. at

90. These background principles, like the statute’s history, also showed that the agency’s interpretation was

“reasonable.” Id. at 93. Then, the Court turned to the

language of the statute to confirm that the statute was

ambiguous and was indeed “broad enough to permit

the Secretary’s reading.” Id. at 93–100.

Even though the Court had originally justified

Chevron deference as a solution to ambiguous statutory language, Zuni looked to “considerations other

than language” to defer to the agency. Id. at 90–91.

Specifically, the Court relied on the complexity of the

regulatory regime and the history of the statute and

regulations that enforced it to reach its initial conclusion that deference was justified. Id. at 90.

Effectively, the Court treated the tools of statutory interpretation as only a last hurdle for the

agency’s interpretation to pass. In a concurrence, Justice Kennedy wrote that if this approach became systemic, “it would create the impression that agency policy concerns, rather than the traditional tools of statutory construction, are shaping the judicial interpretation of statutes.” Id. at 107 (Kennedy, J., concurring).

In Negusie v. Holder, the majority and dissent

again disagreed on the use of the tools of construction.

555 U.S. 511 (2009). Justice Kennedy, writing for the

23

majority, found the statute ambiguous and remanded

“to the agency for its initial determination of the statutory interpretation question.” Id. at 524.

Justice Stevens dissented. He urged that the

Court’s application of Chevron was too broad and that

the Court should not have deferred on a purely statutory question. Justice Stevens believed that under

Cardoza-Fonseca, that was a question for the Court to

decide, not the agency. Id. at 533–35 (Stevens, J., dissenting). Twenty-five years after Chevron, that opinion’s author now had one of the narrowest views of

Chevron deference on the Court.

In Holder v. Gutierrez, the Court again declined

to fully analyze the statutory text at Step One. 566

U.S. 583 (2012). The unanimous Court determined

that the agency’s interpretation of the statute read

“like a multitude of agency interpretations—not the

best example, but far from the worst—to which we and

other courts have routinely deferred.” Id. at 597–98.

Even though the agency’s explanation may have read

like other interpretations that the Court had deferred

to, the Court did not explain how the statute at issue

authorized the agency’s reading.

Cuozzo Speed Technologies, LLC v. Lee was the

last time this Court has deferred under Chevron, finding ambiguity because the statute allowed the application of two different standards. 579 U.S. 261 (2016).

Justice Thomas concurred, noting skepticism of “Chevron’s fiction that ambiguity in a statutory term is best

construed as an implicit delegation of power to an administrative agency to determine the bounds of the

law.” Id. at 286 (Thomas, J., concurring). Justice

Thomas urged the Court to reconsider the “fiction of

Chevron and its progeny.” Id.

24

C. This Court Has Not Deferred Under

Chevron in the Past Seven Years.

In the past seven years, the Court has settled into

a pattern of declining to defer under Chevron in cases

where deference could have been invoked. In SAS Institution v. IANCU, the Court did not apply Chevron

but rather employed the “traditional tools of interpretation.” 138 U.S. 1348, 1358 (2018). Justice Breyer dissented, explaining his view that those interpretive

tools showed that the statute was ambiguous. Id. at

1360. For that reason, Justice Breyer would have deferred under Chevron.

In BNSF v. Loos, the Court applied the tools of

construction, including the customary canon, giving

weight to “the IRS’s long held construction . . . .” 139

U.S. 893, 899 (2019). In American Hospital Association

v. Becerra, the unanimous Court declined to defer and

employed the traditional tools of interpretation. 142 S.

Ct. 1896 (2022). And in Becerra v. Empire Health

Foundation, the Court applied the canons of construction and upheld the agency’s reading. 142 S. Ct. 2354

(2022).

Both of the Becerra cases were viewed as potential vehicles to address the constitutionality of Chevron,6 and Chevron was referenced 51 and 17 times in

6 See Eli Nachmany, SCOTUS Faces a Chevron Decision Tree

in American Hospital Association v. Becerra, YALE J. ON REG. NOTICE & COMMENT (Aug. 9, 2021), https://bit.ly/3hbbIcM; Brian R.

Stimson, et al., Pending Supreme Court Decision in AHA v.

Becerra May be Felt Well Beyond the Healthcare Industry, 12 NAT.

L. REV. 46 (Feb. 15, 2022), https://bit.ly/3FcIDFY; Katie Keith &

Joseph Wardenski, Supreme Court Hears Two Medicare Disputes,

GEO. O’NEIL INST. (Dec. 9, 2021), https://bit.ly/3Pd2jOD.

25

the respective oral arguments.7 But instead of applying or even discussing Chevron, the Court simply applied the canons of construction.

And this past term, the Court again could have

addressed Chevron in Pugin v. Garland, No. 22-23, slip

op. (June 22, 2023). The government asked for Chevron deference, but the Court held that the statute was

unambiguous and declined to defer. Id., slip op. at 10.

Looking at these recent cases collectively, there

have been ten cases applying (or deciding whether to

apply) Chevron in the past eight terms,8 and agencies

have lost 70% of them. See Isaiah McKinney, The

Chevron Ball Ended at Midnight, but the Circuits are

Still Two-Stepping by Themselves, YALE J. ON REG. NOTICE & COMMENT (Dec. 18, 2022).9 Eight of these cases

were decided at one of the Chevron steps (rather than

an exception), and the agency won only one case at

Step Two and two cases at Step One. Agencies lost the

remaining five cases at Step One. This demonstrates

that recently, this Court has decided cases via the traditional tools of construction rather than deference.

This historical overview of cases addressing ambiguity shows that the Court has gone back and forth

on how to determine when a statute is ambiguous and

when or whether to employ the tools of construction.

On the one hand, there are cases like Cardoza-Fonseca, Dole, Adams Fruit, General Dynamics, City of

7 Transcript of Oral Argument, Am. Hosp. Ass’n v. Becerra,

142 S. Ct. 1896 (2022), https://tinyurl.com/bdawj8jr; Transcript of

Oral Argument, Becerra v. Empire Health Found., 142 S. Ct. 2354

(2022), https://tinyurl.com/3nm4be5z.

8 This includes the 2015–16 term in which Cuozzo Speed Technologies, LLC v. Lee was decided.

9 Available at https://tinyurl.com/ye25f352.

26

Jackson, SAS Institution, BNSF, American Hospital,

Empire Health, and Pugin, where the Court engaged

in a rigorous statutory interpretation, applied the “traditional tools of statutory construction,” and did not

defer. On the other hand, there are cases like Sullivan,

Pauley, Holly Farms, Smiley, Zuni Public School, Negusie, and Holder, where the Court either did not apply the canons of construction, swapped the order of

Chevron’s two steps, or reflexively deferred without

thoroughly analyzing the statutes.

Sometimes, the Court has continued in one jurisprudential vein for a while, like the Court’s recent

anti-deference trend. At other times however, the

Court has vacillated quickly between the two, like in

Dole, Sullivan, and Adams Fruit. This uncertainty

gives litigants little confidence in how Chevron will be

applied in their own case.

Just as importantly, this inconsistency in

applying the canons of construction and deciding what

constitutes ambiguity undermines the workability and

longevity of Chevron deference. When a case’s

standard is not “manageable” and “is incapable of

principled application,” it is no longer a workable

precedent. Vieth v. Jubelirer, 541 U.S. 267, 306 (2004).

And when “governing decisions are unworkable,” the

Court is not constrained to follow those precedents.

Payne v. Tennessee, 501 U.S. 808, 827 (1991). In the

context of Chevron, litigants cannot rely upon an

evenhanded

application,

and

this

Court’s

jurisprudence is ambiguous at best, contradictory at

worst. The Court has had forty years to settle on a

consistent approach but has been unable to find one.

For that reason, Chevron should be overruled.

27

III. Failure to Overrule Chevron Would Prolong

Inconsistent Applications in the Circuits

But even as Chevron’s viability at the Supreme

Court wanes, lower courts continue to regularly apply

Chevron.

In a study looking at cases from 2003 through

2013, Professors Kent H. Barnett and Christopher J.

Walker analyzed 1,327 circuit opinions that applied

the Chevron doctrine. Kent H. Barnett & Christopher

J. Walker, Chevron in the Circuit Courts, 116 MICH. L.

REV. 1, 5 (2017).10 Out of all the cases in their study,

Barnett and Walker found that agencies won 71.4% of

the time. Id. at 28. Chevron was applied 74.8% of the

time, while courts used the Skidmore test 10.8% of the

time. Id. at 29. De novo review was granted 7.5% of the

time. Id. The remaining 6.9% of the time, the court did

not specify what standard of review it applied. Id.

When Chevron was applied, agencies won at Step One

11.7% of the time and at Step Two 65.7%. Id. at 33.

Agencies lost at Step One 18.3% of the time and at

Step Two 4.4%. Id. Of the cases that made it to Step

Two, 93.8% favored the agency. Id.

Because the Barnett and Walker study ended before the last case in which this Court deferred—

Cuozzo—the Cato Institute did its own empirical study

of the circuits. Our survey covered two calendar years,

10 The Barnett & Walker study used slightly different search cri-

teria than this brief did. See Barnett & Walker, supra, at 22. One

significant difference between our study and the Barnett &

Walker study is that Barnett & Walker treated each instance of

statutory interpretation, including multiple interpretations in

one case, as separate counts, while we only counted each opinion

once, giving controlling weight to the interpretation that deferred. See id. at 23.

28

from January 1, 2020 through December 31, 2021.11

We found 142 cases analyzing Chevron.12 The results

were less deferential overall than the Barnett &

Walker study, which is unsurprising considering the

direction of deference jurisprudence. But unfortunately, the circuits are still much more deferential

than this Court.

We looked at cases either applying Chevron or deciding whether to apply it. In our study, circuit courts

applied the Chevron steps 84.5% of the time, 7.0% of

cases were decided via Skidmore deference or persuasion, 7.0% received de novo review, and 1.4% were decided on other exceptions. Of all cases studied, the

agency won 57.0% of the time, and 50% of all cases

were decided at Step Two. Of the cases applying Chevron, 59.2% held that the statute was ambiguous and

thus proceeded to Step Two, while 40.8% held that the

statute was unambiguous. Among cases that reached

Step Two, the agency’s interpretation was held to be

permissible 77.5% of the time. Among cases decided at

Step One, by contrast, the agency’s interpretation prevailed only 32.7% of the time.

Looking at all cases decided under Chevron,

13.3% were agency wins at Step One, 45.8% were

agency wins at Step Two, 27.5% were agency losses at

11 Empirical data used in this brief was collected from a Lexis

search. Cases were limited to those that mentioned Chevron at

least four times, discussed it in the majority, and analyzed

whether to apply Chevron. The data excludes cases that applied

Auer/Kisor deference rather than Chevron and cases that were

decided without determining whether Chevron applied. The data

is also limited to reported cases.

12 A complete list of the cases in our study is available at Circuit

Court of Appeals Opinions Analyzing and Applying Chevron,

CATO INST., https://tinyurl.com/yrvy4m9m.

29

Step One, and 13.3% were agency losses at Step Two.

The 45.8% of cases with Step Two agency wins is less

than the 65.7% in the Barnett & Walker study, but it

is still significantly higher than the 10% at the Supreme Court in the past eight years. See Barnett &

Walker, supra, at 33.

A comparison of the recent Supreme Court cases,

the Barnett & Walker study, and our very recent study

of the circuits shows that the circuits apply Chevron

less than they used to, but not nearly as seldom as this

Court. Among cases applying Chevron, only one Supreme Court case (12.5%) in the last eight terms was

decided at Step Two, but the 2003–2013 circuit analysis showed that 70.0% of cases made it to Step Two,

and our 2020–2021 study shows that 59.2% of circuit

cases were decided at Step Two. These comparisons

show that unfortunately, Justice Gorsuch may have

understated the situation in his Buffington dissent

when he said “courts . . . rarely rely upon [Chevron].”

Buffington, 143 S. Ct. at 22. Circuit courts still find

ambiguity 59.2% of the time when Chevron is invoked.

Too many courts continue to look for ambiguity rather

than “find[ing] the best reading of the statute.” Kavanaugh, supra, at 2144.

Another difference between the lower courts and

this Court is that the lower courts have struggled to

apply pre-deference tests, like Mead and the Major

Questions Doctrine. Although this Court has narrowed

Chevron for decades through tools like the Mead “force

of law” test and the Major Questions Doctrine,13 the

lower courts have only employed such tests in 4.9% of

13 See United States v. Mead, 533 U.S. 218, 229–34 (2001);

King v. Burwell, 576 U.S. 473, 485–86 (2015); West Virginia v.

EPA, 142 S. Ct. 2587, 2607–09 (2022).

30

Chevron cases. See Isaiah McKinney, At the Supreme

Court, Chevron Deference Has Morphed into the Application of the Tools of Construction, YALE J. ON REG. NOTICE & COMMENT (Jan. 9, 2023).14 If this Court retains

Chevron but creates another narrowing pre-deference

test, history suggests that lower courts will struggle to

apply that test as well.

Chevron continues to boldly wreak havoc among

the lower courts. Leading by example has proven to be

insufficient, but this Court has an opportunity to finally put Chevron to rest and overrule it. Only overruling Chevron in its entirety will give lower courts the

clarity they need. This Court should end Chevron deference once and for all and give Chevron a “tombstone

no one can miss.” Buffington, 143 S. Ct. at 22.

CONCLUSION

Chevron should be overruled.

..................................................................................

Respectfully submitted,

Curt A. Levey

THE COMMITTEE FOR JUSTICE

1629 K Street, N.W.

Suite 300

Washington, DC 20006

(202) 270-7748

clevey@committeeforjustice.org

Anastasia P. Boden

Counsel of Record

Thomas A. Berry

Isaiah McKinney

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1414

aboden@cato.org

July 21, 2023

14 Available at https://tinyurl.com/2p8jhk9y.