SCOTUS Demonstrates Why We No Longer Need Chevron Deference | Opinion

The Supreme Court's 1984 decision in Chevron v. NRDC established a regime of deference to administrative agencies. It is one of the most frequently cited cases in the Court's history. But you wouldn't know that from this term at the Supreme Court.

Some commentators—myself included—thought that the Court would at least narrow Chevron deference this term. That didn't happen. The Court didn't even mention Chevron in any of its majority opinions. At all. One might conclude that the Court ignored Chevron altogether this term.

In so doing, the Court actually proved that it doesn't need Chevron anymore. A basic underlying rationale of the decision—that agency "experts" are better positioned to interpret complex federal laws than are judges—just doesn't hold up. This term, the Court demonstrated that while it may be challenging, judges are fully capable of parsing and interpreting complex federal law.

Now, it's time for the Court to overrule Chevron.

A bit of background: imagine that Congress passes a law empowering a federal administrative agency to do something. Perhaps that "something" is furnishing Medicare reimbursements to certain hospitals or regulating smoke stacks. Whatever it is, Congress doesn't always speak clearly. So, administrative agencies routinely need to interpret the laws to determine what Congress has authorized (or required) them to do and how they must do it.

These interpretations often provide the basis for agency actions, which often lead to litigation from aggrieved parties. If the Environmental Protection Agency, for example, interprets a federal environmental law to permit regulation of power plants, when the statute could fairly be read not to authorize such regulation, a power plant owner might sue the agency to stop it.

Chevron sets out a two-step process for federal courts to review the government's interpretation of a federal law. At step one, the court asks whether the law is clear. If it is, the court is supposed to give effect to the clear meaning of the law. Simple enough.

Step two is where things get tricky—and controversial. If a court determines that the law is not clear, Chevron says the court must defer to the government's interpretation, if it's reasonable. It doesn't matter if there is a better reading of the law. The government's interpretation controls.

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Chevron skeptics have criticized the decision as contravening the separation of powers. But some counter that Chevron is necessary. They argue that federal law is hyper complex today, and it's best if we just let expert administrators interpret it for us. According to these folks, judges are generalists, and they cannot be expected to make sense of complicated statutory schemes. Therefore, when passing regulatory statutes, Congress implicitly delegates interpretive power to administrative agencies (not courts) to resolve ambiguities when laws are unclear.

But as the Supreme Court showed us this term, that premise is flawed. In both American Hospital Association v. Becerra and Becerra v. Empire Health Foundation, the Court interpreted detailed provisions of the Medicare law. Despite the complexity, the Justices were able to arrive at clear answers after finding the provisions unambiguous.

Of course they were. That's what judges do—they interpret laws. Expert administrators may be better at carrying out the laws in the most efficacious manner, but that is not the same thing as determining what a federal statute actually means. For example, health officials at the Centers for Disease Control and Prevention may have a leg up when it comes to tailoring a mask mandate to prevent the transmission of COVID-19 on airplanes, but they—and their political appointee supervisors—cannot claim superior expertise in interpreting the meaning of words like "sanitation" in federal law. Their comparative advantage does not come in the deployment of what Justice Elena Kagan has called "the 'traditional tools' of construction": text, context, history, structure, and the semantic and substantive canons of statutory interpretation. That is judges' turf. Agency officials are law-executors, not law-interpreters.

Yes, sometimes Congress writes laws that are hard to understand. But as Sixth Circuit Judge Raymond Kethledge reminds us, "[t]hat a statute is complicated does not mean it is ambiguous. It just means that the judge needs to work harder to determine...the statute's meaning." When judges take the time to engage rigorously with Congress' work, interpretation is eminently doable.

Back to Chevron. If the two-step Chevron framework is the law, the Court should have applied it in both American Hospital Association and Empire Health Foundation. That would have looked like this: the Court would have stated the Chevron framework, found that the statute was clear at the first step, and resolved the case there. But the Court didn't do that. Instead, it skipped right to the statutory interpretation. It ignored Chevron.

Dissenting in a 2018 case—Pereira v. Sessions—Justice Samuel Alito protested "that the Court, for whatever reason, [was] simply ignoring Chevron." But in that case, the Court at least mentioned Chevron before concluding the statute at issue was unambiguous at step one. Justice Alito was simply arguing that the Court should have gotten to step two.

What happened this term was different entirely. As James Romoser wrote of American Hospital Association, "the opinion does not contain even a single citation to [Chevron], even though hundreds of pages of briefing and a large chunk of the oral argument focused on the continued vitality of the" case. American Hospital Association and Empire Health Foundation both turned on the Court's review of an agency's interpretation of a complex statute. Wherefore art thou, Chevron?

If the difficult statutory questions in American Hospital Association and Empire Health Foundation present clear answers, it's tough to see what technical statutory issues would qualify as ambiguous. And as for those regulatory statutes that are vague enough to invite multiple "reasonable" interpretations, it does not follow that agency "experts" are better positioned to interpret them than are federal judges. Those experts might be better able to make sober policy judgments about how to implement the laws once interpreted, but as Chief Justice John Marshall once wrote, "it is emphatically the province and duty of the judicial department to say what the law is."

In an appropriate case, the Court should do away with Chevron deference once and for all.

Eli Nachmany is a Senior Research Fellow at the C. Boyden Gray Center for the Study of the Administrative State at the George Mason University Antonin Scalia Law School. He recently graduated with a J.D., magna cum laude, from Harvard Law School, where he served as Editor-in-Chief of the Harvard Journal of Law & Public Policy. Follow @EliNachmany

The views expressed in this article are the writer's own.