Conservative Justices Appear Willing in Oral Argument to Undo or Narrow Chevron

The U.S. Supreme Court’s conservative majority appeared receptive to industry arguments that the court should overturn, or at least narrow, the Chevron doctrine, which gives agencies like the FCC and FTC deference in interpreting laws that Congress passes. The court heard oral argument Wednesday for more than 3.5 hours in two cases challenging Chevron deference, Loper Bright Enterprises v. Raimondo and Relentless v. Commerce. Both concern fishing regulations and don’t touch directly on communications regulation.

U.S. Solicitor General Elizabeth Prelogar, who argued both cases for the government, was peppered with questions, especially from the three justices former President Donald Trump appointed -- Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

SCOTUS hasn't cited Chevron deference for years, as several justices noted, but it remains important for lower court decisions (see 2306290063). The more liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, indicated they will likely support preserving the doctrine.

“This case well illustrates the real-world costs of Chevron, which do not fall exclusively on the Chevrons of the world but injure small businesses and individuals as well,” said Paul Clement, representing Loper. “There is no justification for giving the tie to the government or conjuring agency authority from silence,” he said.

If Congress can vest an agency with express authority to interpret law, it can do the same implicitly, Prelogar said in arguing the Loper case. The only question is whether the court drew the right line in deciding when a delegation occurred, she said.

The concerns of some justices can be addressed through clarification “without taking the drastic step of upending several decades of settled precedent,” Prelogar said. “Stare decisis is part of the rules of the game,” she said, referring to the doctrine that says courts should follow precedent. Chevron was decided in 1984.

The doctrine's framework “is a bedrock principle of administrative law with deep roots in this court’s jurisdiction,” Prelogar said: “Overruling a precedent as foundational as Chevron should require a truly extraordinary justification, and petitioners don’t have one.” She warned of “endless litigation” that would follow if Chevron were overturned.

SCOTUS hasn’t relied on Chevron in a decision for more than a decade, despite arguments that it’s “foundational,” said Chief Justice John Roberts. “Have we overruled it in practice even if we’ve left the lower courts to continue to grapple with it?” Roberts asked.

Long seen as a proponent of overturning Chevron, Justice Clarence Thomas, asked how the court can separate “statutory delegation” from “statutory silence.”

There is “an ambiguous ambiguity trigger” in Chevron and “nobody knows what it means,” Gorsuch said. The government wants the court to “infer” congressional intent “from a linguistic ambiguity that may not be the product of any intent at all,” he said. When there’s ambiguity, under Prelogar’s argument, the government would “always win,” he said.

In many cases, agencies seek deference “for a view of the law that affected parties had no chance to be heard about,” Gorsuch said. When challenges are allowed to agency decisions, “everybody gets to litigate their case, everybody, until there’s a final decision by this court,” he said: “Everybody gets their day in court.”

Kavanaugh raised questions about how to view adjudicatory decisions by the National Labor Relations Board. “You can’t adjust your behavior ahead of time, necessarily, based on a new rule,” he said. What’s done in a particular case affects all the companies that didn’t have notice, he said.

Is it possible for a judge to say, “the best reading of the statute is X, but I think it is ambiguous and, therefore, I'm going to defer to the agency, which has offered Y?” Kavanaugh asked: “I think that happens all the time.”

It’s not like the doctrine “has flown under the radar and Congress is unaware of it,” Prelogar said. She noted that Chevron is a long-standing doctrine Congress hasn’t chosen to overturn. “It matters that Congress hasn’t sought to change Chevron in any kind of fundamental way,” she said.

Legislation overturning Chevron hasn’t passed, Sotomayor said. Statutes require different levels of judicial review, besides Chevron, she said.

Jackson stressed that federal judges aren’t equipped to make decisions in many complex areas. “I see Chevron as doing the very important work of helping courts stay away from policymaking,” she said.

Kagan asked a hypothetical question about whether a judge or the Department of Health and Human Services is better positioned to decide whether a cholesterol reducer should be considered a “drug” or a “dietary supplement.” Sometimes there’s a gap or a “genuine ambiguity” and “I would rather have people at HHS” deciding “whether this new product was a dietary supplement or a drug,” she said.

“Congress knows that this court and lower courts are not competent with respect to deciding all the questions about AI that are going to come up in the future,” Kagan said: “We don’t even know what the questions are about AI, let alone the answers to them.”