Government’s Chevron Defenses Ignore Its ‘Constitutional Flaws’: Petitioners

Even in “hard cases,” courts must exercise independent judgment and determine the “original public meaning” of federal statutes “based on their best understanding of statutory text, structure, history, purpose, and precedent,” but Chevron “flouts these principles,” said the petitioners’ U.S. Supreme Court reply brief Friday (docket 22-1219) in Relentless v. Commerce Department in support of overruling Chevron.

Friday’s brief was the last filing scheduled before SCOTUS holds oral argument Jan. 17 on Relentless and Loper Bright Enterprises v. Raimondo's “tandem” petitions (docket 22-451) to overrule Chevron (see 2311200008). Interest has been extremely high in the two petitions, which since December 2022 collectively have drawn 88 amicus briefs, for and against getting rid of Chevron.

Requiring courts to apply whatever “inferior-but-tenable construction” an agency has most recently selected on “pure policy grounds,” as Chevron does, violates Article III, the Administrative Procedure Act (APA) and the Fifth Amendment, said the Relentless reply brief. The government “barely grapples with these problems,” and its various efforts to defend Chevron’s departure from ordinary interpretive principles are “unpersuasive,” it said.

The government’s delegation theory “conflates interpretation and policymaking and involves no actual (or permissible) delegation,” said the brief. Its historical theory also fails because Chevron “marks an abrupt departure from longstanding practice,” it said. Its “misplaced” policy arguments can’t overcome Chevron’s “constitutional flaws,” it said. Its case for stare decisis (to stand by things decided) “ignores Chevron’s threat to the rule-of-law values that stare decisis aims to protect,” it said.

The government’s defense can’t “reconcile” Chevron with Article III, said the brief. Article III “requires judges to exercise independent judgment when interpreting federal statutes,” it said. The government doesn’t directly challenge that proposition, it said. It nonetheless insists that Chevron “properly compels judicial deference to agency interpretations that -- by the court’s lights -- do not best reflect the original public meaning of the law,” it said.

The government’s delegation theory is also “an unconstitutional fiction,” said the brief. Its argument is that judges applying Chevron fulfill their Article III duty to “‘say what the law is’” because the law itself delegates to agencies the power to resolve statutory ambiguities, it said. But that delegation theory “rests on a fictional account of congressional intent and an impermissible transfer of core Article III responsibility,” it said.

The government also leans on policy arguments “about agency expertise and centralization,” said the brief. But those arguments are unpersuasive and can’t overcome Chevron’s “constitutional deficiencies,” it said. Chevron concerns the resolution of interpretative ambiguities in statutory text, and Article III courts, not agencies, “have the most relevant expertise in the craft of legal interpretation,” it said: “The government ignores this point.”

The government also overlooks that courts “are fully capable of assimilating agency expertise when it properly bears on statutory interpretation,” said the brief. The government implies that Chevron is necessary to let agencies “develop and execute regulatory policies in the national interest,” it said. But at least half the states “do just fine without state-law Chevron analogs,” it said.

The government’s APA arguments for preserving Chevron also fail, said the brief. Five justices “have already recognized that the APA reinforces the judiciary’s Article III duty to exercise independent judgment when determining the meaning of federal law," it said. But Chevron ignored the APA, and the government’s response “disregards its plain meaning and history,” it said.

The government also fails to reconcile Chevron “with the Fifth Amendment’s guarantee of due process of law,” said the brief. The government denies any due process problem “because judges applying Chevron do not manifest personal bias,” it said. But that merely addresses the due process test for judicial disqualification, it said.

The government says nothing about the broader due process guarantee of “fundamentally fair proceedings,” said the brief. Chevron’s bias is “systemic,” and it potentially affects “any case involving a federal agency,” it said. That’s “even worse than personal bias,” it said. The government insists that Chevron doesn’t make agencies the judges in their own cases, it said.

But if so, that’s “in name only,” it said: “Chevron turns the judge into the agency’s mouthpiece, forcing the judge to embrace whatever inferior-but-tenable interpretation the agency selects.”