SCOTUS Should ‘Ditch’ Chevron Doctrine, Keep Chevron Decision, Says TechFreedom

When “properly construed,” the U.S. Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council “gels with TechFreedom’s broader understanding of how the administrative state should work,” said the think tank's amicus brief Thursday (docket 22-451) in support of the petitioners in Loper Bright v. Raimondo. But the Chevron doctrine “has gone too far,” it told SCOTUS. The petitioners are commercial fishing companies urging SCOTUS to “jettison” the Chevron doctrine (see 2307180033).

Agencies shouldn’t be allowed to use any silence, gap or ambiguity in a statute “to construe the law in a manner that binds the courts,” said TechFreedom. But the Chevron decision’s “core insight -- that policymaking is a task not for the courts, but for the political branches -- is correct,” it said. By deliberately placing a broad term, such as “reasonable” or “feasible,” in a statute, Congress “may grant an agency discretion to apply its expert judgment in limited circumstances,” it said. SCOTUS “should ditch the Chevron doctrine, but keep the Chevron decision,” it said.

TechFreedom “takes a balanced stance on the administrative state,” said the brief. “We oppose regulators who attempt to exercise raw political power” but support those “who apply special knowledge to difficult technical problems,” it said. “When expert agencies issue shrewd regulations, they can foster technological dynamism,” it said. Chevron the doctrine “has rightfully come in for extensive criticism, and should be discarded,” it said. “Chevron the decision, however, is sound.”

“At its core,” the 1984 decision in Chevron says Congress and the administrative agencies, not the courts, are the “policymaking experts,” said TechFreedom. The decision also says Congress may, by statute, “call on an agency to wield its policymaking expertise,” it said.

But the decision also says a court, before assuming Congress passed a policy matter to an agency, “must deploy every pertinent tool of statutory interpretation, in an effort to nail down the law’s meaning for itself,” said TechFreedom. Chevron the decision “strikes the right balance between respect for agency expertise, respect for congressional judgment, and respect for the judiciary’s role as final arbiter of the law’s meaning,” it said: “Accordingly, there is no need to overturn Chevron.”

Courts should defer to agencies “only when it is clear that Congress intended for them to do so,” said TechFreedom. SCOTUS “has gone astray,” in certain post-Chevron decisions, by instructing the judiciary to defer to agencies even when Congress hasn’t clearly told the judiciary to do so, it said. Under “the proper rule” -- and under the Chevron decision, when properly construed -- courts should defer to agencies “only when Congress has triggered such deference,” it said.

Though SCOTUS need not overrule the Chevron decision, it should clarify the decision’s “limits,” said TechFreedom. The court should clarify that statutory silence “never triggers deference,” it said. It should also remind judges “never to defer to an agency before rigorously deploying the tools of statutory interpretation,” it said.

SCOTUS should also remind people the Constitution “vests all legislative power in Congress,” said TechFreedom. Though the court may instruct agencies “to fill in statutes’ technical details,” Congress “must make the fundamental policy decisions itself,” it said. It wants SCOTUS explicitly to announce that Chevron the doctrine “is dead,” it said.