Supreme Court News
![handle is hein.journals/admreln49 and id is 124 raw text is:
News
0 kay, let's get right down to it.
The Death of Chevron: Loper Bright
Enterprises v. Raimondo, 144 S. Ct. 2244
(2024)
Oral argument in Loper Bright and its companion case,
Relentless, Inc. v. Dept. of Commerce, No. 22-1219, made plain
back in January that the Chevron doctrine's survival came
down to whether the ChiefJustice and Justice Barrett would
choose to narrow or overturn it. They chose the latter. It
turns out that, according to Chief Justice Roberts' opinion
for a six-justice majority, the Chevron doctrine has been flatly
contradicting the Administrative Procedure Act (APA) for
these last forty years.
You may recollect that Chevron itself revolved around
EPA's interpretation of the statutory phrase stationary
source. The Supreme Court explained that courts, when
reviewing an agency's construction of a statute that the
agency administers, should first determine if Congress has
directly spoken to the precise question at issue. Where
Congress has done so, courts should give effect to its intent.
If, however, a statute is silent or ambiguous with respect to
a specific issue, a court should defer to the agency's reason-
able interpretation of the statutory language. Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-843 (1984).
The Chevron court explained that this approach was good
because agencies enjoy greater subject matter expertise and
political accountability than generalist judges. Also, the
Court characterized statutory ambiguity in an enabling
act as Congress's way of implicitly delegating authority to
the agency to make the policy judgments necessary to fill
the gaps. The underlying rationale for this fiction was that
Congress, being reasonable, would naturally want courts
to defer to reasonable agency policy choices resolving those
statutory ambiguities that remain after courts have exhausted
traditional tools of statutory construction. Congress wants
agencies, not courts, to make policy.
LOUIS J. VIRELLI lll* RICHARD W. MURPHY**
Over the course of the next forty years, Justice Scalia and
the Reagan administration seized on the Chevron doctrine
to push executive interpretations through the courts; the
Chevron doctrine grew increasingly complicated as courts
adopted step zero tests to determine which agency inter-
pretations deserved deference; law professors wrote countless
articles debating the merits of the Chevron doctrine and how
it should work; the Chevron doctrine became the bete noire
of the conservative legal movement; and Chevron was cited in
over 18,000 cases.
And so we come to Loper Bright. Let's skip the facts and
the specific problem of statutory construction implicated by
the case as no one but the parties cared about them-to a
rounding error, all of the argument focused on the question
of whether Chevron should be overruled.
The Chief Justice began his analysis by citing James
Madison to show that the Framers were wise enough to
understand that '[a]ll new laws ...' would be 'more or less
obscure and equivocal, until their meaning' was settled 'by
a series of discussions and adjudications.' Loper Bright, 144
S. Ct. at 2257 (quoting The Federalist No. 37) (J. Madison)).
For evidence that courts are in charge of this process of
settling legal meaning, he turned to the other Publius,
citing Alexander Hamilton for the proposition that the
final 'interpretation of the laws' would be the 'proper and
peculiar province of the courts.' Id. (quoting The Federalist
No. 78, (A. Hamilton) but adding the word final).' The
Chief Justice then observed that the Supreme Court has
long agreed that the Supreme Court is in charge of legal
interpretation, quoting Marbury's ringing declaration, [i]t
is emphatically the province and duty of the judicial depart-
ment to say what the law is.Id. at 2257 (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).2
Balancing the scales a bit, Chief Justice Roberts noted
that there is a long tradition of courts according due respect
to Executive interpretations of federal statutes, especially
interpretations issued near the time of a statute's enactment
that have been consistent over time. For a suitable model
Professor of Law, Stetson University College of Law.
AT&T Professor of Law, Texas Tech University School of Law.
In the same number of The Federalist, Hamilton also indicated that courts should adopt a deferential approach to constitutional review of legislation.
The Federalist No. 78 (A. Hamilton) (observing that courts should declare all acts contrary to the manifest tenor of the Constitution void and that
the Constitution must prevail over a statute where there is irreconcilable variance). Hamilton's indications that deferential review is appropriate when
judges carry out their most important interpretive task did not make it into Loper Bright.
2 For additional judicial support for judicial interpretive supremacy, the Chief Justice quoted the Supreme Court's declaration in Decatur v. Paulding
that it is the judicial role to 'interpret the act of Congress, in order to ascertain the rights of the parties.' 144 S. Ct. at 2257 (quoting 39 U.S. (14 Pet.)
497, 515 (1840)). This choice seems a trifle odd given that Decatur held that courts may exercise this power only where they have jurisdiction; they lack
jurisdiction to review discretionary actions of executive actors, and this discretion extends to statutory construction. Decatur, 39 U.S. at 515.
ADMINISTRATIVE & REGULATORY LAW NEWS 18 VOL 49, NO 4
18
ADMINISTRATIVE & REGULATORY LAW NEWS
VOL 49, NO 4](ViewImageLocal?handle=hein.journals/admreln49&div=48&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Supreme Court News
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most