Arguments for Undoing Chevron ‘Lack Support in Text or History,’ EDF Says

The Environmental Defense Fund used its U.S. Supreme Court amicus brief Dec. 22 in Relentless v. Commerce Department (docket 22-1219) in support of the government respondents who want to preserve Chevron doctrine and attack “the outright insubstantiality” of the Relentless petitioners’ main legal arguments for overturning it.

The petitioners’ arguments in the brief are that judicial deference to administrative interpretations of statutes is unconstitutional under Article III and the due process clause. In addition, such deference violates the Administrative Procedure Act’s standard of review provisions, said the brief. The constitutional arguments “lack support in text or history,” it said. If they were correct, “rafts” of precedent, much of it predating Chevron, “would be undone,” and many familiar statutes “would be upended,” it said.

The APA arguments lack merit “as an original matter of statutory construction,” said the brief. But were the question closer, “the sheer weight of decided cases, both before and after the APA’s enactment, would counsel overwhelmingly against a wholesale reinterpretation of the APA at this point,” it said.

As with the tandem petitioners in Loper Bright Enterprises v. Raimondo (docket 22-451), who also seek to overrule Chevron, the Relentless petitioners “make no attempt to supply a workable alternative review regime that would honor” the legislative and executive branch roles “in determining policy,” said the brief. Nor do they offer “a stable framework to protect the public’s interest in reliable, predictable, and uniform administration of statutes,” it said. The Relentless petitioners are due to file their reply brief Jan. 5. The Relentless and Loper Bright cases will be argued in tandem July 17.

Besides overturning precedent “by the library shelf,” a regime that compelled judges to apply de novo review to interpretive judgments Congress assigned to agencies would, in practice, require judges to do just what the Chevron court in 1984 “strained to prevent,” said the brief. Overturning Chevron would force judges to “substitute their own policy preferences for those of expert, politically accountable agencies,” it said.

The petitioners’ “central contention,” that Chevron deference violates Article III, “is manifestly wrong,” said the brief. The Constitution doesn’t prohibit “judicial deference to administering agencies’ interpretations of ambiguous statutory provisions,” it said. Nothing in the Constitution prevents Congress from providing that the executive branch’s interpretations of public laws “be accorded weight by courts adjudicating cases and controversies,” it said.

Judicial deference is consistent with the APA, pre-Chevron case law and “the judicial review statute applicable in Chevron itself,” said the brief. The petitioners’ theory that the APA forbids courts from deferring to agencies’ interpretations of statutes “is wrong as a matter of text and original understanding,” it said.