Government Urges SCOTUS to Keep Chevron, Says It's ‘Vitally Important'

The U.S. Supreme Court shouldn’t “overrule” Chevron because it’s “a bedrock principle of administrative law that provides an appropriately tailored framework for judicial review of an agency’s interpretation of a statute it administers,” said U.S. Solicitor General Elizabeth Prelogar in the government’s brief Friday in Loper Bright Enterprises v. Raimondo (docket 22-451). It's not a view shared among the dozens that filed amicus briefs in the case through July 24 in unequivocal support of eliminating Chevron (see 2307240050).

The petitioners are commercial fishing companies urging SCOTUS to “jettison” Chevron (see 2307180033). They argue Chevron went too far when the National Marine Fisheries Service (NMFS) had the permitted authority, under the Magnuson-Stevens Fishery Conservation and Management Act, to order them to pay the salaries of federal fishing inspectors they're required to carry onboard. The instant case is being watched closely for the implications a SCOTUS Chevron decision could have for all federal agencies, including the FCC.

Congress “is generally presumed” under Chevron “to have allocated interpretive authority to the agency to resolve a statutory ambiguity or fill a gap, within reasonable bounds,” said Prelogar. Before any agency deference under Chevron is appropriate, a reviewing court “must exhaust the traditional tools of statutory construction to determine if Congress has spoken to the issue,” she said. Chevron “comes into play” only when a court decides Congress hasn’t “itself clearly answered an interpretive question,” she said.

In that circumstance, it’s “entirely sensible” to presume Congress "intended its vesting of authority in the agency -- and the agency’s reasonable exercise of that authority -- to be given effect by the courts,” said Prelogar. Chevron gives “appropriate weight to the expertise, often of a scientific or technical nature, that federal agencies can bring to bear in interpreting federal statutes,” she said. Chevron also promotes “national uniformity” in the administration of federal law “and greater political accountability for regulatory policy,” she said.

When a statutory provision is genuinely susceptible to “multiple reasonable readings,” choosing among those readings “often turns on a policy judgment that Congress has vested in the agency,” and that is “properly left” to the political branches, said Prelogar. Contrary to the petitioners’ suggestion, Chevron “is also rooted in a long tradition” of judicial deference to reasonable executive interpretations, she said. That tradition preceded the 1946 enactment of the Administrative Procedure Act, “and continued after it,” she said: “At no point in American history have courts applied an invariable rule of de novo resolution of all questions of law.”

Stare decisis (“let the decision stand”) principles “weigh heavily in favor” of keeping Chevron, said Prelogar. The doctrine has been a “cornerstone” of administrative law, reflected in “thousands” of judicial decisions for 40 years, she said. Chevron also provided “a stable background rule against which Congress has legislated,” she said.

Congress could alter or eliminate the Chevron “framework” at any time but declined to do so, said Prelogar. That’s why Chevron is entitled to “the particularly strong form of stare decisis” that the Supreme Court “affords to decisions that Congress could override by legislation,” she said.

The petitioners’ “contrary theories” for giving Chevron “little or no precedential weight” lack merit, said Prelogar. Chevron is “workable and remains vitally important,” she said. Overruling it “would upset the reliance interests of regulated parties and the public” in the many agency rules and orders that have been upheld under it, she said. The petitioners contend different judges have different thresholds for finding agency ambiguity, she said. But reasonable jurists “may disagree under any interpretive framework,” she said. Replacing Chevron with a “regime” of de novo review “would draw federal courts into resolving policy questions and exacerbate the potential for inconsistent results,” she said.

The doctrine “respects the separation of powers and due-process principles,” said Prelogar. When an Article III court applies Chevron to uphold an agency’s interpretation of a statute, the court is exercising its judicial power "while also respecting Congress’s Article I decision to vest authority in the agency to resolve an ambiguity or fill a gap within reasonable bounds,” she said. Chevron is also “consistent” with the APA’s Section 706, which says courts “shall resolve questions of law but does not specify the standard of review they should use,” she said.

The petitioners’ policy arguments against Chevron “are unsound and, in any event, are properly addressed to Congress,” said Prelogar. SCOTUS should also reject the petitioners’ alternative request to narrow Chevron so it would no longer apply when a statute is purportedly “silent,” as opposed to “merely ambiguous,” she said.

The petitioners offer “no workable line” for distinguishing between silence and ambiguity, as their case illustrates, said Prelogar. The Magnuson-Stevens Act isn’t silent about the authority of the NMFS to require owners of regulated vessels to retain and pay for third-party monitoring services, “but in fact confirms the agency’s authority in several provisions,” she said.

There’s nothing controversial about requiring regulated parties to bear the costs of retaining the services of third parties, like lawyers or accountants, to comply with federal law, said Prelogar. If SCOTUS “revisits” Chevron at all, it should remand for the D.C. Circuit to apply whatever “new approach” SCOTUS adopts, she said. But “given the force” of stare decisis and Chevron’s importance to all three branches of government, the D.C. Circuit’s judgment in the government’s favor should be affirmed, she said.