Chevron Deference Is Dead, Long Live Deference

Authors

Jack M. Beermann, Boston Univeristy School of LawFollow

Document Type

Article

Publication Date

11-15-2024

ISSN

1936-0398

Publisher

Cato Institute

Language

en-US

Abstract

The demise of Chevron deference standing alone may turn out to be much less important for the future of administrative law and agency regulation than many believe. The Court explicitly approved of deference under the Skidmore factors, which instruct reviewing courts to “resort for guidance, even on legal questions” to “the interpretations and opinions of the relevant agency, made in pursuance of official duty and based upon specialized experience.”8 Further, the Court had already created numerous limitations to the reach of Chevron deference and, as the Court noted, it had not deferred under Chevron in nearly a decade. Chevron deference was already a rather weak doctrine, even in some lower federal courts. More fundamentally, many of the cases in which the government could have argued for Chevron deference pre–Loper Bright will now be decided under the relatively deferential APA standards of review such as arbitrary, capricious, and substantial evidence. Thus, agency action will continue to receive deference on judicial review. In any event, whether Chevron was the deciding factor in many or even any important cases is doubtful. In numerous instances, the Supreme Court and other courts overturned agency statutory constructions even while Chevron was good law.

While the demise of Chevron itself may have little material effect on federal regulatory power, those who believe that robust federal regulation is important for advancing and preserving social welfare may still have cause for concern. Loper Bright sends out anti-regulatory signals, and its effects may interact with other recent anti-regulatory Court decisions. The ascension of the major questions doctrine,9 the Court’s narrow reading of agency authority over “waters of the United States,”10 its allowance of challenges to administrative rules even decades after they were finalized,11 and its recognition of a right to a trial by jury in some agency civil enforcement actions12 could all significantly reduce the scope of agency power.13 For those skeptical of the social value of federal regulation, Loper Bright is cause for optimism. That is especially true if Justice Neil Gorsuch’s concurring opinion—aimed at weakening the role of precedent in judicial decisionmaking—signals that the Court is willing to revisit additional fundamental pro-regulatory administrative law doctrines.

Recommended Citation

Jack M. Beermann, Chevron Deference Is Dead, Long Live Deference , 2023-2024 Cato Supreme Court Review 31 (2024).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4020