The Future of Chevron Deference I: Signs of Doubt

Doubts are gathering about the future of Chevron deference in the United States. Under sustained attack from the forces of judicial supremacy on matters of legal interpretation and shorn of some of its strongest defenders, Chevron seems to be on the ropes. In this post, I will lay out some of the signs of doubt about Chevron’s likely future longevity.

First, before he retired from the Supreme Court of the United States, Justice Kennedy expressed some “concern” with how Chevron deference “has come to be understood and applied”, commenting in an immigration law case, Pereira v. Sessions 585 US _____ (2018),

In according Chevron deference to the [Board of Immigration Appeals’] interpretation.., some Courts of Appeals engaged in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be discerned, 467 U. S., at 843, n. 9, and whether the BIA’s interpretation was reasonable, id., at 845. In Urbina v. Holder, for example, the court stated, without any further elaboration, that “we agree with the BIA that the relevantstatutory provision is ambiguous.” 745 F. 3d, at 740. It then deemed reasonable the BIA’s interpretation of the statute, “for the reasons the BIA gave in that case.” Ibid. This analysis suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.

The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as anagency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still….

Given the concerns raised by some Members of this Court, see, e.g., id., at 312–328; Michigan v. EPA, 576 U. S. ___, ___ (2015) (THOMAS, J., concurring); Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142, 1149–1158 (CA10 2016) (Gorsuch, J., concurring), it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determiningagency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.

Slip opinion at pp. 1-3.

This represents a strong statement of concern from a judge not noted for taking extreme positions on contested questions of constitutional significance. Little in Justice Kennedy’s previous writings indicated discontent with the status quo, such that if even Justice Kennedy was having second thoughts one can surmise that many others harbour similar doubts.

Second, two state supreme courts (Wisconsin and Mississippi) have materially reduced the deference they give to administrative interpretations of law.

In the lead opinion in Tetra Tech EC v. Wisconsin Department of Revenue, No. 2015AP2019 (26 June 2018), Kelly J announced that the Wisconsin Supreme Court had “decided to end [its] practice of deferring to administrative agencies’ conclusions of law” (at para. 3), by redefining its doctrine of ‘due weight’ deference and eliminating entirely its ‘great weight’ deference regime.

For Kelly J, under the prior, ‘great weight’ deference regime, agencies were made “the master of statutory construction and application”, occupying the field “to the exclusion of the judiciary” (at para. 56). That the judges retained “a sufficient quantum of judicial power to set the guardrails” gave “no good answer to the charge that this doctrine cedes something that belongs exclusively to the judiciary”:

We are concerned here with categories of power, not quantity. Regardless of the circumscriptions we put in place, when we defer we are allowing the agency to exercise what is unmistakably core judicial power.

2018 WI 75, at para. 56.

Moreover, “when that agency comes to us as a party in a case, it——not the court——controls some part of the litigation” (at para. 65), as the court “defers to the governmental party, simply because it is the government…” (at para. 66), there is “systematic favor”, which “deprives the non-governmental party of an independent and impartial tribunal” (at para. 67).

In King v. Mississippi Military Dept 2017-CC-00784-SCT the Mississippi Supreme Court also took an axe to its deference doctrine, pursuant to which although courts retained the last work on the meaning of statutory language, “great deference” was to be shown to agency interpretations of law, as long as the agency interpretation did not contradict “the unambiguous terms or best reading of a statute” (Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So. 3d 600, 606 (2009)). Two reasons were offered for the volte face, one relating to the internal coherence of the state’s administrative law, the other to the state’s constitutional separation of powers. As to internal coherence:

[W]riting on the one hand that we give great deference to agency interpretations of statutes and, then, with the next strike of the computer keyboard, writing that no deference will be given if the agency’s interpretation contradicts the best reading of the statute, creates a confusing and vague standard. The same can be said of claiming to give deference while simultaneously claiming that the Court bears the ultimate responsibility to interpret statutes.

2017-CC-00784-SCT at para. 9

As to the separation of powers, whilst “interpreting statutes once enacted is the role of the judicial branch” (at para. 10), the effect of the state’s deference doctrine was to “share the exercise of the power of statutory interpretation with another branch in violation” of the state constitution (at para. 11).

Third, Justice Scalia, a strong defender of Chevron (albeit with a robust ‘step one’ involving the use of every tool of statutory interpretation he could get his hands on) has been replaced by Justice Gorsuch, a Chevron sceptic. As Judge Gorsuch, he wrote a concurring opinion lamenting Chevron in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).

Meanwhile, Justice Kennedy has been replaced by Justice Kavanaugh, who has expressed some scepticism about Chevron (see here, pp. 2150-2154), especially as it applies to so-called “major rules”. With Justice Alito also describing Chevron as “increasingly maligned” (Pereira, slip op at p. 1) and Justice Thomas having nailed his flag firmly to the anti-Chevron mast (Michigan v. Environmental Protection Agency, 135 S. Ct. 2699, 2712 (2015)), the ranks of the Chevron sceptics seem to be swelling where (in American law) it most matters: on the bench of the Supreme Court of the United States.

Fourth, some members of the American legal academy, most spectacularly Philip Hamburger, have denounced the supposed lawlessness of the administrative state, with Chevron as the principal bête noire. Plenty of others — some relative newcomers to administrative law scholarship — are adding their voices to the chorus.

In a future post, though, I will lay out some reasons for doubt about these doubts.

This content has been updated on February 27, 2019 at 18:48.