Chevron Doctrine Likely Gets Narrowed but May Survive in Some Form, Say Experts

Following last week’s oral argument in two Chevron cases before the U.S. Supreme Court (see 2401170074), the future of the doctrine appears in doubt.

Experts said they see SCOTUS as more likely to narrow Chevron than overturn it completely. The two justices most in question are Chief Justice John Roberts and Amy Coney Barrett, lawyers said. Chevron gives agencies like the FCC and FTC deference in interpreting laws that Congress passes.

The doctrine is likely to be overturned “in some significant form,” which will “change how aggressive the FCC can be in broadly crafting rules that aren’t perfectly and explicitly authorized by statute, as well as how aggressive parties impacted by FCC action are,” said Venable’s Craig Gilley. “There will just be more appeals of FCC actions,” he said.

The FCC will have to do “much more leg work” in rulemaking proceedings “explaining how any rule change matches perfectly with statutory text,” Gilley predicted. Appellants will have a new “tool allowing affected parties to argue against all sorts of FCC action with claims that the action exceeds statutory authority. That has implications for everything from wireless policy to broadband to the USF, he said.

It’s not “a foregone conclusion” the court will overrule Chevron, “though that seems most likely,” said Daniel Deacon, assistant professor at the University of Michigan Law School. If justices keep the doctrine, “they will likely seek to limit it in various ways,” he said. Deacon said the major questions doctrine is unlikely to replace Chevron because it’s “not really set up to supply the default standard of review.”

There was discussion during oral argument about “Skidmore deference,” Deacon noted. Skidmore v. Wilkie is a 1944 case holding that an administrative agency's interpretative rules deserve deference based on their persuasiveness. “One thing that really seemed to bother the conservative justices is the fact that Chevron allows agencies a lot of interpretive flexibility over time,” Deacon said. “I would be surprised if the resulting opinion did not seek to address that concern,” he said.

There was also discussion at the court last week about a related deference doctrine in Kisor v. Wilkie (see 1907300021) and there is speculation the court could “Kisorize” Chevron, lawyers said. Kisor established a multifactor test that an agency’s interpretation must pass to receive deference, including looking at whether an agency’s interpretation is reasonable and whether the “character and context” of the interpretation “entitle it to deference,” according to an American Bar Association analysis.

The most likely outcome is that the court narrows Chevron, said TechFreedom Internet Policy Counsel Corbin Barthold. “I'm seeing all these pieces saying it's a slam dunk that Chevron is getting completely overturned -- I didn't hear it,” he said.

Nothing in last week’s oral argument seems to counter the expectation that a majority of justices seem ready to make changes to the doctrine, said Daniel Rodriguez, professor of law at Northwestern University. Less clear is what comes in its place, as there doesn’t appear to be a clear majority with a replacement doctrine, he said. Some justices’ questioning seemed to point to an approach that would say that an ambiguous statute is for courts to decide and agencies’ opinions carry little weight, he added.

SCOTUS could rule “no more” on Chevron, but a replacement doctrine may not come for years, emerging from how the court reviews various cases, Rodriguez said. That would parallel how Chevron emerged, after decades of courts dealing with statutory interpretation and deference, he said.

Depending on Barrett and Roberts, there’s “a good chance of a new, lesser degree of deference,” said Andrew Schwartzman, Benton Institute for Broadband & Society's senior counselor.

The doctrine will likely be “eliminated or substantially curtailed,” Free State Foundation President Randolph May said in an email. “This will affect the FCC and other agencies because they no longer will receive the high degree of deference which Chevron dictated,” he added. The court will likely make it clear that agency decisions should still receive Skidmore deference, based on “the persuasiveness of the agency’s reasoning, its consistency with its contemporaneous interpretations and past decisions and demonstrations of the agency’s expertise regarding the particular matter," he said.

The major questions doctrine will play a role with courts first deciding whether the statutory interpretation constitutes a major question, May said. Only if the answer is no would a court get to a Chevron analysis, “and then only if Chevron survives in some form,” he said.

The swing vote is probably Barrett, who seemed reluctant during oral argument to overrule Chevron, emailed Public Knowledge Senior Vice President Harold Feld. Roberts “left the door open” in Kisor v. Wilkie to overrule Chevron, “but he has always been an incrementalist and big on stare decisis,” Feld said: This is “even more important given his sensitivity to criticism of the court conservatives basically being a collection of results-oriented partisan hacks.” Barrett clerked for the late Justice Anton Scalia “and has been very touchy about the allegation that the court's conservatives simply make things up as they please,” Feld noted.

Feld said he could see “a middle ground” based on Roberts' dissent in City of Arlington v. CTIA (see 1305210024), which addressed "jurisdictional" interpretations of statutes. “Roberts was more willing to believe that agencies have a ‘conflict of interest’ when interpreting their own jurisdiction,” he said. If Chevron is overturned, the effect is unclear, Feld said, noting that many judges with ties to the Federalist Society are already ignoring the doctrine. A lot of pre-Chevron cases “mandated deference to the FCC, particularly on technical matters,” he said. Spectrum and public safety related issues probably wouldn’t be affected. Feld said: “Anything else is going to be ‘show me the panel, and I'll tell you the outcome.’"

That SCOTUS granted cert on questions directly calling for overruling Chevron shows justices are seriously considering doing so, emailed appellate lawyer Sean Donahue of Donahue & Goldberg. Conversely, the court might be swayed by the argument that deference in any form should be abolished completely and maybe replace it with Skidmore, Donahue said: “That would be pretty radical” and “toss out vast amounts of precedent.”

Some justices seemed open to return to Skidmore, but the problem with that is it was overturned because justices were getting ideological in their rulings, said Devon Ombres, Center for American Progress senior director-courts and legal policy. The likely result is a patchwork of regulatory rules and ways regulatory agencies can function across different judicial districts, with far more unpredictability, he said.