Supreme Court to Consider Overruling Chevron Deference

In both Relentless, Inc. v. Dept. of Commerce and Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Commerce, the Supreme Court is tasked with deciding whether to overrule Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.—a 1984 decision that provides for judicial deference to federal agencies when interpreting ambiguous statutory provisions they are charged with administering. 

The statute at issue in both cases is the Magnuson-Stevens Fishery Conservation and Management Act (the “Act”), which regulates the Atlantic herring fishery and helps to promote conservation while reducing overfishing. The Act set up a council to oversee the Atlantic herring fishery. The Act allows the National Marine Fisheries Service (the “Service”) to require commercial fishing boats to let federal agents, also called monitors or observers, come along on fishing expeditions to collect data and prevent overfishing. The rub is that the Service has also interpreted the Act to allow it to require some domestic fishing vessels to pay or partially subsidize the salary of the monitors. A group of fisheries, including the petitioners in these two cases, challenge the Service’s cost-shifting program, arguing that the Service’s interpretation of the Act is wrong and should not be given deference.

The U.S. Courts of Appeals for the First and D.C. Circuits affirmed the respective district court rulings in favor of the government. Both courts held the Service’s interpretation of the Act is permissible and entitled to Chevron deference because of the Act’s ambiguity regarding the source of payment of the monitors. Relentless and Loper argue that Chevron deference violates the Constitution because it improperly delegates statutory interpretive authority from judicial courts to agencies of the executive branch. Relentless and Loper further argue that the ultimate interpretation of a statute should remain with the judiciary, while an agency should be free to persuade Article III judges of the best interpretation under, for example, Skidmore deference, as afforded to an administrative agency’s interpretative rules according to their persuasiveness. The government argues that Chevron allows Congress to properly allocate interpretive authority to agencies to handle statutory ambiguities and fill gaps. The government also argues that stare decisis weighs heavily in favor of following Chevron, and overruling it would lead to courts resolving policy questions.

At oral argument, the Justices seemed particularly interested in whether overruling Chevron is proper given separation of powers concerns. Justices Kagan and Sotomayor questioned whether agencies, given their expertise on constantly evolving issues, are in a better position than judges to resolve statutory ambiguity. Justice Jackson similarly questioned whether some ambiguities are actually policy questions more appropriate for the executive branch. Justice Kagan suggested that Congress may legislate with Chevron in mind, and asked whether codifying Chevron would be an appropriate option. Similarly, several Justices inquired about the implications of overturning 40-year-old precedent that has resulted in an administrative state so expansive that it could be likened to a fourth branch of government.

Justices Gorsuch and Kavanaugh identified a concern of inconsistencies created by agency deference in situations when each new administration leads the agency to change its mind. Justices Thomas, Alito, and Gorsuch also explored the difference between statutory ambiguity and silence, and whether courts inconsistently determine a statute is ambiguous under Chevron step one when the statute is perhaps just silent on the issue. The Chief Justice and Justice Barrett were generally less vocal. However, Justice Barrett expressed concerns about overturning long-standing precedent and the guidelines for lower courts that would supplant Chevron. Along these lines, Justice Barrett inquired about a less-than-full abandonment of Chevron. Chief Justice Roberts suggested that regardless of whether Chevron is overturned, courts would be required to utilize all statutory interpretation canons, and that Skidmore similarly requires this analysis. Although there was some discussion specifically about the Act and fishing monitors, the focus of the oral argument and questions from the Justices—which lasted over three hours—was on whether Chevron should remain the law and on the broader implications if Chevron were to be overruled.

The case was argued on January 17, 2024. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information, please contact Chantel Febus, James Azadian, David Schenck, Cory Webster, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.