Not surprisingly, the Supreme Court overturned the "Chevron deference" principle from its 1984 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. decision in Loper Bright Enterprises v. Raimondo (and it did so expressly and with no equivocation, stating "Chevron is overruled").

This case (decided below on Chevron principles) arose over a dispute involving regulation on fishing (and the amount thereof) in an area within 200 nautical miles beyond the U.S. territorial sea (12 nautical miles from shore). The regulations were enacted under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. § 1801 et seq.) and are administered by the National Marine Fisheries Service (NMFS). These regulations are intended to prevent overfishing and are promulgated by the NMFC based on recommendations by eight regional councils comprised of coastal state representatives, stakeholders (e.g., fishermen), and members of the NMFC. The NMFC, for its part, includes mandatory limitations on annual catch and specifies ("prohibit, limit, condition, or require") types and amount of fishing gear permitted to be used, as well as requiring a certain proportion of the catch to be used in scientific research. At issue in this case was the requirement that "one or more observers be carried on board" domestic vessels "for the purpose of collecting data necessary for the conservation and management of the fishery" under § 1853(b)(8), the cost of which to be borne by "(1) foreign fishing vessels operating within the exclusive economic zone (which must carry observers), [under] §§1821(h)(1)(A), (h)(4), (h)(6); (2) vessels participating in certain limited access privilege programs, which impose quotas permitting fishermen to harvest only specific quantities of a fishery's total allowable catch, [under] §§1802(26), 1853a(c)(1)(H), (e)(2), 1854(d)(2); and (3) vessels within the jurisdiction of the North Pacific Council, where many of the largest and most successful commercial fishing enterprises in the Nation operate, [under] §1862(a)," albeit capping the costs for the latter two categories, with parties in noncompliance being subject to sanctions imposed by the Secretary of Commerce. This case arose when the NMFC changed its practices to newly impose these fees on Atlantic herring fishermen (to which they objected because it could reduce their annual returns by up to 20%). (The circumstances under which some of the petitioners fished included having to pay observers in some instances where no herring were caught at all, due to vagaries in their catch on a particular fishing trip.)

Petitioners' argument was that while Congress provided the agency with "broad implicit authority" to impose this program it also expressly provided by statute a requirement for three industry funding programs that did not include herring fishing. The Court granted certiorari expressly to decide whether Chevron should be "overruled or clarified."

The opinion, written by the Chief Justice and joined by the five conservative Justices (with the three liberal Justices dissenting) first sets forth the relationships between the three branches of the federal government, starting with Article III, from which the Court recognizes that the judiciary is the final arbiter of the "interpretation of the law" (as the "the proper and peculiar province of the courts," citing Alexander Hamilton in The Federalist Papers No. 78). The opinion recited, from Marbury v, Madison to the present day, its consistent allegiance to the supremacy of the courts in interpreting the laws Congress enacts while "according due respect to Executive Branch interpretations of federal statutes." However, such respect cannot "supersede" the judiciary's judgment, "[o]therwise, judicial judgment would not be independent at all."

The opinion then presents a disquisition regarding the expansion of the Executive branches de facto powers under President Roosevelt's New Deal, maintaining that from that time until the Chevron decision "the Court continued to adhere to the traditional understanding that questions of law were for courts to decide, exercising independent judgment." The opinion notes that determinations of fact were a different matter (and it might be noted should remain so under Dickinson v. Zurko, at least with regard to factual matters before the Patent and Trademark Office), being binding on courts if there was "evidence to support the findings," citing St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51 (1936), under the principle that Congress had the power to designate agencies for fact-finding within the ambit of their expertise. However, the opinion reminds, the Court did not extend agency deference to questions of law, citing United States v. American Trucking Assns., Inc., 310 U.S. 534, 544 (1940); Social Security Bd. v. Nierotko, 327 U.S. 358, 369 (1946); and Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 681–682, n. 1 (1944), as examples, while reiterating the principle that decisions of the Executive Branch were entitled to "great weight" under American Trucking Assns. In this regard, the opinion also assesses the Court's decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944), having the effect that decisions by agencies based on their "specialized expertise" could be resorted to properly by litigants and courts for "guidance even on legal questions" under certain circumstances ("the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control").

The opinion also sets forth what it considers cases decided anomalously wherein agencies' legal interpretations were given deference. These include Gray v. Powell, 314 U.S. 402 (1941) (due to Congress having given the agency the authority to make the legal determination at issue), and NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944) (same). But the opinion particularly identifies these cases as exceptions "cabined to fact-bound determinations," and thus consistent with the Court majority's general theme of judicial supremacy, including in other (legal) aspects of these outlier decisions. Accordingly the opinion can place even these cases permitting agency legal determinations to be consistent with this general (and Constitutionally mandated) rule. And even regarding factual agency decisions the opinion terms the Court's treatment thereof to be "far from consistent," citing several learned treatises and Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156 (1944), for this assessment.

Despite this history, the Court's judgment (leading to its overturning Chevron) of more recent judicial history is that the degree of deference to agencies' legal interpretation was departure from this earlier jurisprudence, contrary to the provisions for judicial review under the Administrative Procedures Act (APA) and particularly 5 U.S.C. § 706. The opinion cites as the political motivation for the APA Congress's appreciation for "a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices," albeit based on the Court's interpretation of that intent enunciated in United States v. Morton Salt Co., 338 U.S. 632 (1948); somewhat ironically the opinion also cites a decision, Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670–671 (1986), handed down only two years after Chevron that the APA was enacted as part of a "comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers" that impliedly did not impact the scope and reach of Chevron, at least at that time and that iteration of the Court. In reciting the majority's appreciation of the parsing of responsibilities between agencies and the courts by the APA (§ 706), the opinion finds codification of "the unremarkable, yet elemental proposition" of judicial primacy as set forth earlier in the opinion "dating back to Marbury" and thus finding a legislative imprimatur on this principle the enunciation of which should be unnecessary under the majority's interpretation of the Constitutional grounds therefor. The majority recognizes in contrast there are certain instances where Congress "mandate[s] that judicial review of agency policymaking and factfinding be deferential" under § 706(2)(A)(abuse of discretion) and § 706(2)(E)(lack of substantial evidence). But to the extent the APA was intended to be "the fundamental charter of the administrative state," Kisor v. Wilkie, 588 U.S. 558, 580 (2019), the opinion posits that "Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled pre-APA understanding that deciding such questions was" reserved exclusively for the courts, which Congress in the majority's opinion did not do ("The text of the APA means what it says," an assertion supported to the majority's satisfaction by the legislative history and "various [contemporaneous] commentators").

In something of a rhetorical aside, the majority opinion recognizes that when expressly authorized by Congress (citing in footnotes 29 U.S.C. § 213(a)(15) of the Fair Labor Standards Act, 42 U.S.C. § 5846(a)(2) of the Atomic Energy Act, and 33 U.S.C. § 1312(a) of the Environmental Protection Act), agencies can exercise "a certain degree of discretion," such as in giving meaning to statutory terms, citing Batterton v. Francis, 432 U.S. 416, 425 (1977), or to "'fill up the details' in a statutory scheme," citing Wayman v. Southard, 10 Wheat. 1, 43 (1825), in a way that gives agencies some "flexibility" regarding the scope and meaning of terms like "appropriate" and "reasonable," citing Michigan v. EPA, 576 U.S. 743, 752 (2015). Nevertheless, the majority opinion asserts that "the best reading of a statute" is that even under these exceptional circumstances "the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits" (and of course, even recognizing these exceptions the majority's legal analysis, set forth below, precludes Congress from generally conferring broad interpretive powers on administrative agencies).

With this explication as prelude, the majority contends and bases the opinion on "[t]he deference that Chevron requires of courts reviewing agency action cannot be squared with the APA." In explaining their bases for this conclusion, the majority notes the history regarding legal review of agency decisions between enactment of the APA and Chevron as being on a "statute by statute" basis. Chevron (ironically noted as being "decided . . . by a bare quorum of six Justices") changed all that, or course, in a "marked departure from the traditional approach." In this regard, the opinion expressly setting forth the Chevron doctrine as it has been developed in the almost four decades since it was handed down by the Court. The threshold question is whether Congress evinced a clear intent regarding ("ha[d] directly spoken to") the legal issue in question; if so, "that is the end of the matter." If not, the Chevron Court enunciated (without "mentioning the APA, or acknowledging any doctrinal shift") a "two-step process": first, "whether Congress has directly spoken to the precise question at issue" and second, in instances where a reviewing court has determined Congress did not so speak (or is ambiguous) to decide whether the agency's interpretation is "based on a permissible construction of the statute" and defer thereto, ignoring "traditional interpretive tools." Asserting that, initially the Chevron decision "seemed destined to obscurity," citing a retrospective law review article, the majority characterizes subsequent reading and application of the two-step test as the "governing standard" within a few years of the decision. Moreover, this judicial metamorphosis was justified as being consistent with Congressional intent and based on agency expertise, citing in support Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740–741 (1996); Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. 261, 276–277 (2016); Utility Air Regulatory Group v. EPA, 573 U.S. 302, 315 (2014); and National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005), raising at least some questions on the continued viability of these decisions.

The doctrinal issue in the majority's view is the failure of subsequent decisions (and the impossibility thereof in the majority's view) for reconciling the Chevron framework with the APA. The opinion sets forth the contradictions supporting the majority's view of that impossibility using the express statutory language of § 706. This amounts to courts "mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time" (emphasis in opinion), "even when a pre-existing judicial precedent holds that the statute means something else." And in doing so the opinion asserts "Chevron turns the statutory scheme for judicial review of agency action upside down." Chevron (and the dissent, according to the majority opinion) confuse ambiguities in a statute with a delegation of statutory interpretation to the agency. It has been the role of the judiciary to "routinely confront statutory ambiguities in cases having nothing to do with Chevron—cases that do not involve agency interpretations or delegations of authority" according to the opinion, statutes often having ambiguities needing interpretation and this having always been the role of the judiciary to resolve. Recourse to "permissible" agency interpretation "makes no sense" unless it is an interpretation by a court according to the opinion. "Chevron gravely erred . . . in concluding that the inquiry [i.e., statutory construction] is fundamentally different just because an administrative interpretation is in play," the opinion states. And when the issue is an ambiguity regarding the proper scope of an agency's powers "abdication in favor of the agency is least appropriate" (emphasis in opinion).

The majority reject the government's justifications in favor of Chevron (being consistent with Congressional intent based on subject matter expertise, "uniform construction" of the law, and leaving policy decisions to political actors) based on the judiciary's greater expertise in deciding legal issues, as set forth in Kisor and here because the majority recognize that "[c]ourts . . . do not decide such questions blindly" and have the parties and amici to rely upon for such technical information. Thus the majority find unnecessary courts deferring to agency interpretation of the law under Chevron (and as often in questions of judicial interpretation the Court notes that "to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute"). Regarding uniform construction, the majority reject this reasoning, inter alia, because "there is little value in imposing a uniform interpretation of a statute if that interpretation is wrong." And "[t]he view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken" in the majority's view as misunderstanding ("a profound misconception") of the courts' role, if only because "the Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches." The opinion sets forth succinctly the majority's view of judges' role in the process, having the obligation "to independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA."

Putting the final nail in Chevron's coffin, the opinion states that "Chevron's justifying presumption is . . . a fiction," citing judicial utterances from Justice Gorsuch and Justice Thomas and using a history of the Court's decisions "pruning its presumption[s]" underlying Chevron as evidence thereof "in an effort to match Chevron's presumption to reality," citing for procedural distinctions United States v. Mead Corp., 533 U.S. 218, 230 (2001), and Justice Breyer's quotation of Mead to that effect in Christensen v. Harris County, 529 U.S. 576, 597 (2000) (Breyer, J., dissenting), as well as the distinctions raised by the Court in Encino Motorcars, LLC v. Navarro, 579 U S. 211, 220 (2016), again relying on Mead, and for substantive applications (or refusal to apply Chevron) King v. Burwell, 576 U S. 473, 486 (2015). The Court has required express delegation, as in West Virginia v. EPA, 597 U.S. 697, 723 (2022) (quoting Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001), and refused to apply Chevron principles to judicial review questions, Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990); or schemes not administered by the agency, Epic Systems Corp. v. Lewis, 584 U.S. 497, 519–520 (2018) (there being "mixed signals" by the Court in criminal applications, comparing Abramski v. United States, 573 U.S. 169, 191 (2014), with Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 704, n. 18 (1995). These decisions amount to a "byzantine set of preconditions and exceptions, [wherein] some courts have simply bypassed Chevron, saying it makes no difference for one reason or another" (followed by a footnote setting forth six examples and a spate of scholarly assessments).

This analysis ends with the reality that the Supreme Court "has not deferred to an agency interpretation under Chevron since 2016," citing Cuozzo. And the majority's opinion that "[a]t best, our intricate Chevron doctrine has been nothing more than a distraction from the question that matters: Does the statute authorize the challenged agency action?" while "at worst, it has required courts to violate the APA."

The only remaining issue for the majority is the question of stare decisis, a doctrine whose relevance is fraught with ambiguity for the Supreme Court (see "Alternative Reasoning for Supreme Court's Life Sciences Subject Matter Eligibility Jurisprudence"). Here the majority rejects the contention that stare decisis requires the Court to uphold Chevron ("It does not"). Applying the stare decisis considerations ("the quality of [the precedent's] reasoning, the workability of the rule it established, . . . and reliance on the decision," citing Knick v. Township of Scott, 588 U.S. 180, 203 (2019) (quoting Janus v. State, County, and Municipal Employees, 585 U.S. 878, 917 (2018)) "all weigh in favor of letting Chevron go." This is because the majority believe the principles enunciated in Chevron have been "fundamentally misguided," primarily because none of the cases applying this precedent have "grappled with the APA" (at least not how these six Justices believe it needs to be grappled with). The opinion cites the efforts to "revise its foundations and continually limit its application" and the "cottage industry" of legal scholars "attempting to decipher its basis and meaning," as well as concurring and dissenting opinions in earlier decisions by the Court "questioning its premises," with citations supporting this assertion. With evident disdain, the majority assert that Chevron "[f]or its entire existence" was but a "rule in search of a justification," citing Knick, adding "if it was ever coherent enough to be called a rule at all." As a practical matter, the majority believe the Chevron rule is "unworkable," due in part to the ambiguous meaning(s) to the requirement that a statute is ambiguous to justify deference to an agency's legal interpretation(s). Legal principles that are "in the eye of the beholder" result in arbitrary decisions, the majority maintain, being "an impressionistic and malleable concept" (the majority citing the dissenting opinion here as "proving the point" insofar as the guidance for courts to "reach Chevron's second step when it finds, 'at the end of its interpretive work,' that 'Congress has left an ambiguity or gap'" as "being no guide at all"). "The statute still has a best meaning, necessarily discernible by a court deploying its full interpretive toolkit" is the majority's guiding principle and a case being an "agency case" does not relieve a court of its responsibility to interpret the statute (and excoriating the dissent's "test" as being "all the dissent can come up with, after four decades of judicial experience attempting to identify ambiguity under Chevron," as evidence of the "futility of the exercise"). The majority see nothing but failed attempts at clarifying the Chevron doctrine and in the process becoming "an impediment, rather than an aid, to accomplishing the basic judicial task of 'say[ing] what the law is'" under Marbury. "At this point, all that remains of Chevron is a decaying husk with bold pretensions" in the majority's opinion, not worthy of being retained on stare decisis principles.

Turning to reliance interests (which form another basis for retaining earlier decisions on stare decisis grounds), the majority do not find the characteristics of a "stable background rule" that would justify maintaining the Chevron precedent. In addition to courts ignoring or turning away from the rule, the doctrine does not provide "a clear or easily applicable standard," citing Janus. Indeed, the majority opine that Chevron "affirmatively destroys" reliance interests by granting "a license authorizing an agency to change positions as much as it likes, with '[u]nexplained inconsistency' being 'at most . . . a reason for holding an interpretation to be . . . arbitrary and capricious,'" citing Brand X Internet Services. And Chevron "allows agencies to change course even when Congress has given them no power to do so," according to the majority, which "fosters unwarranted instability in the law," and leaving "an eternal fog of uncertainty" as a result. It is the Court's responsibility to correct its mistakes and not an occasion for the law to change erratically; in order for the law to "develop in a principled and intelligible fashion," citing Vasquez v. Hillery, 474 U.S. 254, 265 (1986), the Court must "leave Chevron behind.

Finally, the majority disavows any interpretation that this decision should call into question earlier decisions relying on or invoking the Chevron standard, based on statutory stare decisis principles and because "[m]ere reliance on Chevron cannot constitute a "'special justification'" for overruling such a holding, because to say a precedent relied on Chevron is, at best, "just an argument that the precedent was wrongly decided," citing Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014) (quoting Dickerson v. United States, 530 U.S. 428, 443 (2000)).

The closing paragraph provides Chevron's epitaph:

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

This decision has been met with predictions that it will result in release of an unbridled judiciary on the workings of the administrative state (the propensity for the judiciary to act in this fashion pre-Loper has been discussed; see "The Tyranny of the Judiciary"). That is not the only outcome, and alternatives and potential outcomes (as well as an explication of the dissent in Loper) will be the subject of future posts.

Loper Bright Enterprises v. Raimondo (2024)
Opinion by Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett; concurring opinions by Justice Thomas and Justice Gorsuch; dissenting opinion by Justice Kagan, joined by Justice Sotomayor, joined by Justice Jackson as it applies to No. 22–1219; Justice Jackson took no part in the consideration or decision of the case in No. 22–451

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