William & Mary Law School
The question presented in Loper Bright Industries v. Raimondo1 is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,2 indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.3
The decades-long lack of clarity on the Court concerning the status of Chevron deference is a prominent of example of one of the Court’s shortcomings, that it sometimes does a poor job of providing clarity on important issues of federal law. As the head of one of the three branches of the United States government, the Court can and should do better. Thousands of judges, millions of lawyers and hundreds of millions of citizens look to the Court for answers on important questions of law, and the Court is the only organ of government with the power to provide definitive answers. In Loper Bright, the Court should take the opportunity to overrule or clarify the status of Chevron deference and turn over a new leaf by resolving to provide lower federal and state courts with clearer instructions on the status of important federal legal doctrines.
This essay proposes that the Court overrule the Chevron two-step standard of review of agency statutory construction and replace it by reviving deference under the factors announced in the Skidmore case with a twist that preserves Chevron’s greatest virtue, agency freedom to alter its statutory interpretations so long as the agency remains within the zone of reasonable construction. This essay also proposes that the Court clarify the boundary between cases involving statutory construction and cases involving agency policy decisions that are reviewed under the arbitrary and capricious standard articulated in cases such as Motor Vehicles and Overton Park. On this matter, this essay proposes that this boundary be drawn based on a straightforward and in my view simple inquiry into whether the case centers on the correct understanding of a statute (where the Skidmore factors would apply) or the policy implications of the agency’s actions (where arbitrary, capricious review would apply). In my view, this understanding is easier for courts to apply, is more consistent with the structure established by the Administrative Procedure Act (APA) and would focus judicial review on the issues that ought to matter to the parties and the courts.
This essay proceeds as follows. Part I briefly describes the Loper Bright case and the issues involved. Part II examines the current status of Chevron deference, including the turmoil evident in lower federal courts over the correct application of Chevron, the problem of the boundary between Chevron and arbitrary, capricious review and my proposed solution to both sets of problems. Part III looks at other areas of law with similar problems created by the lack of clarity at the Supreme Court level. Part IV concludes.
Jack M. Beermann,
Loper Bright and the Future of Chevron Deference
William & Mary Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3647