Supreme Court Overrules Chevron Framework

Legal Sidebari

Supreme Court Overrules Chevron Framework

June 28, 2024

In what has the potential to be one of the most consequential decisions in federal administrative law, the

Supreme Court on June 28, 2024, overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., in a pair of cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of

Commerce (collectively Loper). The Chevron doctrine—named for the case that articulated it—required

federal courts to defer to a federal agency’s reasonable interpretation of ambiguous statutory provisions

the agency administers.

For the better part of four decades, Chevron has been one of the foundational decisions in administrative

law, governing the relationship between agencies and courts in matters of statutory interpretation and

acting as a backdrop against which Congress has legislated. As one scholar put it: Chevron “is the most

talked about, most written about, most cited administrative law decision of the Supreme Court. Ever.” For

the past decade or so, however, Chevron has come under increasing fire from some corners of the federal

judiciary and legal academia. Once cited often and approvingly by a majority of Supreme Court Justices,

Chevron has recently fallen into desuetude at the Court. Over the past several terms, the Court has

declined to apply or even cite Chevron in cases where it may once have governed. Other methods of

statutory interpretation, such as the major questions doctrine, appear to have displaced Chevron, at least in

some instances. Chevron’s absence at the Court has not gone unnoticed, with several Justices commenting

on Chevron’s absence as evidence that it should be overruled.

Against this backdrop, the Court explicitly overruled Chevron, holding that the Chevron framework

violates Section 706 of the Administrative Procedure Act (APA). Section 706 requires courts to “decide

all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning

or applicability of the terms of an agency action.” The majority held that the APA’s command required

courts to exercise their own independent judgment on the meaning of a federal statute, but Chevron

required courts to defer to reasonable agency interpretations of an ambiguous statute. That deference

requirement, the Court held, abdicated the judiciary’s foundational function to “say what the law is.”

Although the petitioners in Loper also challenged Chevron on constitutional grounds, the majority’s

opinion did not address those arguments.

The Chevron Framework

The Chevron framework required a court to defer to an executive agency’s interpretation of an ambiguous

statute that it administers so long as the agency’s interpretation was reasonable. The framework’s

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namesake 1984 Supreme Court case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., set

out a two-step process for determining whether a court must defer to an agency’s statutory interpretation.

The Chevron framework typically applied if Congress has given an agency the general authority to make

rules with the force of law. If a court determined that Chevron applied, at step one it would use the

traditional tools of statutory construction to determine whether Congress directly addressed the precise

issue before the court. If the statute was clear on its face with respect to the issue before the court, the

court was to implement Congress’s stated intent. If the court concluded instead that a statute was silent or

ambiguous with respect to the specific issue, the court then proceeded to Chevron’s second step. At step

two, courts were required to defer to an agency’s reasonable interpretation of the statute regardless of

whether the court would adopt that interpretation on its own were it to have reviewed the statute without

the benefit of an agency’s interpretation. The Chevron framework rested on several related assumptions,

including (1) that statutory ambiguity indicates a congressional delegation of interpretive authority,

(2) that agencies have more expertise than courts to interpret the statutes they administer, and (3) that

agencies are politically accountable and therefore have more claim to make policy than courts.

The Loper Decision

The Court in Loper took specific aim at Chevron’s first presumption—that statutory ambiguities indicate

implicit delegation of interpretive authority to the agency. The majority explained that presumptions can

be salutary, but only where they approximate reality. Chevron’s presumption, the Court explained, does

not approximate reality, “because ‘[a]n ambiguity is simply not a delegation of law-interpreting power.

Chevron confuses the two.’” Instead, the Court held that, when confronted with a statutory ambiguity, a

court should not defer to an agency’s interpretation but instead should do its “ordinary job of interpreting

statutes, with due respect for the views of the Executive Branch.” The views of the executive branch may,

in the words of the 1944 Supreme Court case Skidmore v. Swift & Co., have the “power to persuade, if

lacking the power to control.”

The Court based its decision on Section 706 of the APA which requires courts to interpret all questions of

law in challenges to agency actions. Section 706, the Court held, codified existing practice at the time of

its enactment in 1946, and although some cases at the time had applied deference doctrines in cases

evaluating agency interpretations of law, they were outliers. Rather, courts at that time assumed their role

to be the final interpreters of the meaning of federal law.

The majority’s frequent reference to Skidmore and use of language from that decision suggests that, going

forward, the Court expects lower courts to look to Skidmore to guide their consideration of an agency’s

preferred interpretation of an ambiguous statute. Skidmore gave its name to a much weaker form of

deference that does not require courts to defer to agencies. The Skidmore case itself laid out a list of

factors for courts to consider when determining whether an agency’s interpretation commands the “power

to persuade.” Under Skidmore, courts

consider that the rulings, interpretations and opinions of [an agency], while not controlling upon the

courts by reason of their authority, do constitute a body of experience and informed judgment to

which courts and litigants may properly resort for guidance. The weight of such a judgment in a

particular case will depend upon the thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those factors which give it

power to persuade, if lacking power to control.

Skidmore, however, has received far less attention from the courts than Chevron has and may need

additional development by the courts to refine its application.

In holding that the judiciary, not agencies, are to resolve statutory ambiguities, the majority explained that

the Framers understood “the complexity of objects, . . . the imperfection of the human faculties, and the

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simple fact that no language is so copious as to supply words and phrases for every complex idea,” yet

still expected politically insulated judges to exercise independent legal judgment in resolving statutory

ambiguities. While ambiguities in statutes surely exist, the majority acknowledged, statutes have one

“best” reading that courts can discover by applying the traditional tools of statutory interpretation. The

majority further explained that courts do that all the time when reviewing statutes that an agency has not

yet interpreted. In the Court’s view, there is no reason for courts to abdicate their duty when an agency is

involved. Undercutting another one of Chevron’s presumptions (that ambiguities call for agency

expertise), the majority reasoned that statutory ambiguities do not call for policy expertise or draw judges

into making policy—they call for the exercise of legal judgment. This distinction exists because, the

majority stressed, courts, not agencies, have expertise in interpreting statutes and have done so for

centuries.

Although the Court overruled Chevron, it appears to have preserved the holdings in cases that were

decided pursuant to the Chevron framework prior to Loper. In the briefing of the case and during oral

argument, the litigants and some of the justices discussed the fate of cases decided at Chevron step two.

As explained above, at Chevron step two, a court must defer to an agency’s reasonable interpretation of an

ambiguous statute. In such cases, a court has not made a specific ruling on what the statute means—it has

left that determination to an agency in light of the court’s finding at step one that the statute is ambiguous.

At oral argument, some of the Justices questioned the litigants about whether these step two decisions

would still be considered binding if Chevron were overruled. Counsel for the petitioners argued that

overruling Chevron would not disturb these cases because what the court had found at step two was that

an agency’s interpretation was “lawful.” The Court appears to have adopted this argument in its opinion,

holding that “we do not call into question prior cases that relied on the Chevron framework. 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 our change in interpretive methodology.” Despite

the Court’s holding, questions are likely to remain about whether agencies can change statutory

interpretations that were found to be “reasonable” or “lawful” under step two.

The Dissent

The dissent, penned by Justice Kagan and joined by Justices Sotomayor and Jackson (the latter only with

respect to the Relentless case), defended the Chevron framework on grounds that largely track those that

supported the continued application of Chevron for the last four decades. Chevron, Justice Kagan wrote,

is part of “warp and woof of modern government” and “reflects what Congress would want”—politically

accountable expert agencies making policy, not judges. Justice Kagan, providing examples, explained that

regulatory statutes often contain ambiguities or gaps (sometimes purposefully so) that cannot be resolved

without the exercise of some kind of policymaking expertise that the courts simply do not have. Justice

Kagan reasoned that statutes with such ambiguities or gaps have not fixed any “best” meaning at the time

of enactment, and accordingly there is no law for a court to find using its tools of statutory construction.

The judiciary’s role, Justice Kagan articulated, is only to ensure that an agency’s interpretation is a

reasonable one, to ensure that courts stay out of policymaking. This limited role for courts, Justice Kagan

stressed, is one of judicial “humility,” recognizing that agencies have a better claim to democratic

legitimacy and more expertise in making policy than courts. In other words, she explained, “agencies

often know things about a statute’s subject matter that courts could not hope to.” Courts, Justice Kagan

explained, can “muddle through” when asked to determine the meaning of an ambiguous statute, but

compared to an agency that Congress has entrusted to administer a statute that may deal with technical

subjects like wildlife regulation or medical drugs and devices, it is reasonable to believe Congress would

prefer the agency to have interpretive authority.

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Considerations for Congress

The Loper opinion rested on an interpretation of the APA—not the Constitution. Although the petitioners

argued that Chevron violated Article III of the Constitution, the majority’s opinion did not reach that

issue. As a result, the Court left open the possibility that Congress could amend the APA or enact a

standalone statute to codify some form of deference. Nonetheless, some commentators have argued that

codifying Chevron would violate Article III. In their view Article III, like the APA, requires that the

judiciary have final authority over the meaning of federal law—“to say what the law is” in the words of

the seminal 1803 case Marbury v. Madison. By relying at times on Marbury—a case interpreting Article

III—the majority’s opinion appears to cast doubt on the Congress’s ability to codify Chevron-like

deference.

The decision, however, appears to leave open Congress’s authority to expressly delegate interpretive

authority to agencies. The Court held: “That is not to say that Congress cannot or does not confer

discretionary authority on agencies. Congress may do so, subject to constitutional limits, and it often has.”

The Court cited examples where Congress had conferred discretion on an agency to interpret statutory

terms or “to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility

. . . such as appropriate or reasonable.” Accordingly, Congress may still be able to confer interpretive

authority on agencies so long as it does so expressly.

Author Information

Benjamin M. Barczewski

Legislative Attorney

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