Chevron deference (doctrine)

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What is deference in the context of the administrative state?

Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here.


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What is Chevron?

Chevron deference, or Chevron doctrine, is an administrative law principle that compelled federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The Supreme Court ruled on June 28, 2024, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce to overturn the Chevron deference doctrine, holding that federal courts may not defer to an agency’s interpretation of an ambiguous statute.

Why does it matter?

Chevron is part of a broader debate regarding judicial deference—one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. In addition to Chevron, the Supreme Court has developed several other forms of deference in reviewing agency actions throughout history. Certain types of deference, such as Skidmore deference and Auer deference, remain in effect at the federal level.

Chevron served as the legal structure through which courts could review, approve, and reject regulations in the context of statutory intent. It also maintained a relatively strict rule of deference to federal agencies' interpretations of federal laws, having given regulators broad authority to make rules related to the environment, health care, immigration, and other subjects of public policy.

What are the key arguments?

Opponents of Chevron deference often argued that it infringed on the separation of powers and created regulatory instability. Supporters of the doctrine posited it allowed administrative agencies to operate efficiently and that judges should defer to agencies' subject matter expertise.

What's the background?

The principle derived its name from the 1984 U.S. Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. which concerned disagreement over a change in the Environmental Protection Agency's interpretation of a permitting provision of the Clean Air Act of 1977. The case established a two-step review approach used by courts to analyze an agency's legal interpretations. Under the review process, courts considered (1) Congress' clear intent in passing a law and (2) (if the court found ambiguities in the law) whether an agency's rule was reasonably construed and not arbitrary, capricious, or manifestly contrary to the statute.[1]

Dive deeper

This article contains the following sections:

  • Timeline. This section includes a timeline of key dates regarding Chevron deference.
  • Background on Chevron deference . This section includes background information on the Supreme Court case that established the principle of Chevron deference and an explanation of Chevron and its two-step review process.
  • The end of Chevron. This section includes scholarly arguments regarding historically changing views on Chevron, notable opposition to the doctrine under the Trump administration, and uncertainty around Chevron leading up to the Supreme Court's decision to overturn the doctrine. It also includes background information on the Supreme Court cases that overturned Chevron.
  • What's next after overturning Chevron? This section includes the aftermath following the Supreme Court decision to overturn Chevron, including scholarly arguments, judicial action, and legislative responses.
  • Arguments about Chevron deference. This section includes a selection of scholarly arguments supporting and opposing Chevron deference in theory and practice. The section includes the following:
    • Three arguments in support of Chevron, including efficiency, expertise, and delegated authority
    • Three arguments in opposition to Chevron, including separation of powers, judicial authority, and instability
  • Chevron and the states. This section includes responses to judicial deference made by state governments. State-level approaches to judicial deference vary significantly, however, some state courts grant judicial deference to state administrative agencies similar to Chevron.
  • Other types of deference. This section includes information about various other forms of judicial deference cited by the Supreme Court in agency interpretation cases.
  • Noteworthy events. This section includes a selection of news stories highlighting applications of or challenges to Chevron deference.

Timeline

The following timeline includes key dates regarding Chevron deference:

Background on Chevron deference

Chevron v. Natural Resources Defense Council

See also: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. was decided on June 25, 1984, by the U.S. Supreme Court. The case concerned a disagreement over a change in the Environmental Protection Agency’s interpretation of a permitting provision of the Clean Air Act Amendments of 1977.[2][3]

The case questioned how federal courts should view a federal agency's interpretation of a statute that Congress directed the agency to implement. The Supreme Court held that federal courts should defer to an agency's interpretation of a statute under these circumstances, unless the court determines that the agency's interpretation is "arbitrary, capricious, or manifestly contrary to the statute."[4][5]

The ruling established the principle of Chevron deference, a practice in which federal courts, in reviewing a federal government agency's action, defer to the agency’s construction of a statute that Congress delegated to the agency to administer.[6]

U.S. Supreme Court opinion in Chevron

Justice John Paul Stevens delivered the opinion for a unanimous six-person court. Justice Stevens began his opinion by clarifying the scope and extent to which a federal court should defer to a federal agency's interpretation of a statute, which the agency itself has authority and obligation to administer. These principles are known today as Chevron deference:[7]

“

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. ...

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.[8]

”
—Justice John Paul Stevens, majority opinion in Chevron v. Natural Resources Defense Council[7]

What is Chevron deference?

Chevron deference was a doctrine of judicial deference that compelled federal courts, in reviewing a federal government agency's action, to defer to the agency’s construction of a statute that Congress directed the agency to administer. The original, two-step Chevron process was first outlined in the 1984 U.S. Supreme Court opinion for Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

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Chevron's two-step review

The U.S. Supreme Court's 1984 ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. provided federal courts with the following two-step process for reviewing an agency's interpretation of a statute:

Step one
A court must determine whether Congress expressed intent in the statute and, if so, whether or not the statute's intent is ambiguous.

  • If the intent of Congress is unambiguous, or clearly stated, then the inquiry must end. Agencies must carry out the clearly expressed intent of Congress.
  • If, however, the intent of Congress is unclear, or if the statute lacks direct language on a specific point, then a federal court must decide whether the agency interpretation is based on a permissible construction of the statute—one that is not arbitrary or capricious or obviously contrary to the statute.

Step two
In examining the agency's reasonable construction, a court must assess whether the decision of Congress to leave an ambiguity, or fail to include express language on a specific point, was done explicitly or implicitly.

  • If the decision of Congress was explicit, then the agency’s regulations are binding on federal courts unless those regulations are arbitrary, capricious, or manifestly contrary to statute.
  • If the decision of Congress was implicit, then so long as the agency's interpretation is reasonable, a federal court cannot substitute its own statutory construction superior to the agency's construction.[6][7]

Preliminary review: Chevron step zero

In 2001, the U.S. Supreme Court's ruling in United States v. Mead Corporation narrowed the scope of application for Chevron deference and shed light on a preliminary step in the Chevron process that scholars later described as Chevron step zero. Under Chevron step zero, a federal court asks the initial question of whether or not the Chevron framework applies to the situation. In other words, a federal court must determine whether or not Congress intended for agencies or courts to possess interpretive authority over a statute before embarking on the Chevron two-step process. Administrative law scholar Cass Sunstein coined the phrase "Chevron step zero" in a 2006 article for the Virginia Law Review.[9][10][11][12]

The end of Chevron

Changing views on Chevron leading up to Loper Bright and Relentless

Hailed by Kenneth Starr during the Reagan administration as a Magna Carta for use in federal administrative agency deregulation, Chevron had been a tool for subsequent administrations for deregulatory as well as increased regulatory purposes. The Obama administration, for instance, relied on Chevron in its case for the Affordable Care Act.[13]

Chevron deference, at its inception, was often supported by conservative-leaning legal authorities including Justices Antonin Scalia and Clarence Thomas. Over time, the doctrine began to see a shift in ideological thinking with some individuals, such as Thomas, reversing their views. For example, Thomas wrote the 2005 opinion in National Cable & Telecommunications Ass'n v. Brand X Internet Services, seen as "one of the Court’s most robust articulations of the commandment for judges to defer to administrative agencies," according to law professor Michael Kagan. Kagan wrote that in the 2015 decision in Michigan v. Environmental Protection Agency, however, Thomas' views had changed; his ruling in that case "derided his own prior majority opinion."[14]

Justice Samuel Alito joined decisions critiquing Chevron throughout history, including Chief Justice John Roberts dissent in City of Arlington v. FCC (2013) which argued in favor of a context-specific approach to Chevron. However, Alito also dissented in Pereira v. Sessions (2018) and wrote against the majority opinion's decision, in his view, to ignore Chevron. Alito wrote, "Choosing between these competing interpretations might have been difficult in the first instance. But under Chevron, that choice was not ours to make. Under Chevron, this Court was obliged to defer to the Government’s interpretation."[15]

Opposition to Chevron materialized along a broad ideological spectrum. According to a 2018 study, “[i]f one counts King v. Burwell, all nine justices have at least once signed an opinion explicitly holding that Chevron should not apply in a situation where the administrative law textbooks would previously have said that it must apply."[14]

A shift away from Chevron

Once considered canonical judicial doctrine—cited 81,000 times as of 2018 in legal arguments since its first articulation in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.—Chevron deference had been seen by some scholars as "entering a period of uncertainty, after long seeming to enjoy consensus support on the Court.” What emerged after 2015 had been a period "in which it seems that the Court may be more willing to explicitly refine the doctrine, to limit its application in certain ways, and to articulate new exceptions," according to law professor Michael Kagan.[14]

Law professor Jody Freeman wrote about the shift away from Chevron, arguing that in 2024 it was viewed by conservatives as a way to enable federal overreach:[16]

“ Interestingly, Chevron was a deregulatory decision that allowed the Environmental Protection Agency in the Reagan administration to interpret the Clean Air Act in favor of business. At the time, the decision was embraced by conservatives and considered a stinging loss for environmentalists. But that view has flipped. Now, Chevron is seen as enabling agencies to run amok, a symbol of government excess, overreach, and arbitrariness.[16][8] ”


Opposition to Chevron under the Trump administration

The Trump administration was open about its desire to nominate judicial appointees who were, according to a March 2018 article in The New York Times, "devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations, often without being subject to judicial oversight." The criteria were first applied when nominating Justice Neil Gorsuch to the U.S. Supreme Court. Prior to joining the U.S. Supreme Court, Gorsuch declared Chevron to be “no less than a judge-made doctrine for the abdication of the judicial duty.” Gorsuch's opposition to the Chevron doctrine made him the model for Trump administration judicial appointments.[17]

Professors Kent H. Barnett, Christina L. Boyd, and Christopher J. Walker published a 2018 article discussing Justice Brett Kavanaugh's views on Chevron deference based on his decisions while serving on the United States Court of Appeals for the District of Columbia Circuit. Barnett, Boyd, and Walker wrote that, "Judge Kavanaugh has expressed support for 'reining in' the Chevron doctrine of deference to federal agencies’ reasonable interpretations of ambiguous statutory provisions. He has said he wants to make it less 'indeterminate' and 'antithetical to the neutral, impartial rule of law.'"[18]

Uncertainty around Chevron's future leading up to Loper Bright and Relentless

There had been uncertainty since the inception of Chevron about why the courts had appeared to apply deference in one case but not another. But because prior to 2015 "no justice had announced any desire to formally abandon Chevron, the dominant streams of administrative law scholarship were reluctant to draw doctrinal conclusions from the justices’ failure to practice what they preached," according to law professor Michael Kagan. Kagan stated in a 2018 article, "despite all the fanfare, it is now well known that the Supreme Court itself applies Chevron inconsistently at best."[14]

SCOTUSblog analyst James Romoser in 2021 observed that businesses and conservative organizations had anticipated that American Hospital Association v. Becerra would provide the Supreme Court with an opportunity to limit Chevron deference. Justice Brett Kavanaugh, however, made no mention of the doctrine in the majority opinion, leading Romoser to question whether "the doctrine may be shunned into oblivion" rather than explicitly overturned.[19]

Questions were again raised among journalists and legal scholars in 2023 about whether the court would overturn Chevron deference or clarify the scope of the doctrine’s application with SCOTUS’ decision to hear Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. SCOTUSblog analyst Amy Howe observed that a majority of the justices seemed prepared to overturn or limit Chevron deference at oral argument on January 17, 2024. Justice Ketanji Brown Jackson stated during oral argument for Relentless that her "concern is that if we take away something like Chevron, the court will then suddenly become a policymaker, by majority rule or not, making policy determinations." Howe also wrote that "Justice Elena Kagan repeatedly suggested [at oral argument] that federal agencies, with their scientific and technical expertise, are better suited than courts to resolve ambiguities in a federal statute."[20][21]

The Supreme Court later ruled on June 28, 2024, in Loper Bright and Relentless to overturn the Chevron deference doctrine, ending the period of uncertainty around the doctrine's future.[22]

Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce

See also: Loper Bright Enterprises v. Raimondo, Relentless, Inc. v. Department of Commerce

Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce are consolidated cases decided on June 28, 2024, by the U.S. Supreme Court. The cases challenged the scope of Chevron deference and its application by the United States Court of Appeals for the District of Columbia Circuit and the United States Court of Appeals for the First Circuit to uphold the National Marine Fisheries Service's (NMFS) interpretation of a federal fishery law.

In a 6-3 decision, the Supreme Court overruled the 1984 decision in Chevron v. Natural Resources Defense Council, holding that federal courts may not defer to an agency's interpretation of an ambiguous statute. The decision overturned Chevron deference in the federal courts and held that the Administrative Procedure Act (APA) directs federal courts to clarify ambiguous statutes.[23]

U.S. Supreme Court opinion in Loper Bright and Relentless

Chief Justice John Roberts delivered the opinion, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice Roberts argued that the APA requires courts to determine whether agencies acted within their statutory authority:[22]

“

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.[8]

”
—Chief Justice John Roberts, majority opinion in Loper Bright Enterprises v. Raimondo


Justices Clarence Thomas and Neil Gorsuch filed separate concurring opinions. Justice Thomas wrote in favor of overturning Chevron because it violates the separation of powers, arguing, "Under Chevron, a judge was required to adopt an agency’s interpretation of an ambiguous statute, so long as the agency had a 'permissible construction of the statute.' [...] that deference does not comport with the Administrative Procedure Act, which requires judges to decide 'all relevant questions of law' and 'interpret constitutional and statutory provisions' when reviewing an agency action."[22]

Justice Gorsuch's concurring opinion stated, "Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding."[22]

Dissenting opinion in Loper Bright and Relentless

Justice Elena Kagan filed a dissenting opinion in the cases, joined by Justice Sonia Sotomayor and joined by Justice Ketanji Brown Jackson as it pertained to Relentless. Justice Jackson took no part in the consideration or decision of Loper Bright.[23]

Justice Kagan's dissent argued against the court's decision to overturn Chevron, contending deference to agency interpretation is necessary to fill the gaps of ambiguous statutes:[22]

“

Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court. Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not. And some present policy choices, including trade-offs between competing goods. Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy. And of course Congress has conferred on that expert, experienced, and politically accountable agency the authority to administer—to make rules about and otherwise implement—the statute giving rise to the ambiguity or gap. Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, ‘because of a presumption that Congress’ would have ‘desired the agency (rather than the courts)’ to exercise ‘whatever degree of discretion’ the statute allows.[8]

”
—Justice Elena Kagan, dissenting opinion in Loper Bright Enterprises v. Raimondo

What's next after overturning Chevron?

Following the Supreme Court's decision to overturn the Chevron doctrine, questions arose regarding the implications of the decision on federal agency regulations.

Proponents of the decision argued that the end of Chevron will improve the rulemaking process. Clyde Wayne Crews Jr., a fellow at the Competitive Enterprises Institute, argued in a Forbes article, "Where Chevron deference allowed agencies considerable leeway in interpreting ambiguity in federal statutes, the Court’s elimination of this buffer is anticipated to make agencies more risk averse, inducing more cautious rule-writing in anticipation of judicial scrutiny and meeting higher standards of proof to avoid legal challenges."[24]

Opponents of the decision argued that overturning Chevron creates uncertainty for administrative agencies. Legal Director of the Center for Biological Diversity Jason Rylander argued "the end of Chevron by design gives courts greater discretion to rule on agency interpretations of federal law. ... courts hold more power to reach their own conclusions, sowing greater uncertainty — especially among courts that lean conservative, such as the 5th and 11th circuits," according to Grist.[25]

Applications of Loper Bright

Legal scholars also noted applications of the Loper Bright decision in other situations in the months following the decision to overturn Chevron. For example, the U.S. Air Force announced in July 2024 it would not comply with an EPA order to clean polluted drinking water in Tucson, Arizona, arguing federal regulators did not have the authority to issue the order under Loper Bright. Stanford University Environmental Law Clinic Director Deborah Ann Sivas argued that since Chevron applied to rulemaking and not agency orders, the Air Force's claim would expand the scope of Loper Bright beyond its original intent.[26]

Similarly, the United States Court of Appeals for the Sixth Circuit ruled in August 2024 not to grant deference to the National Labor Relations Board's (NLRB) interpretation of the National Labor Relations Act. Attorney Edward Bonnett Jr. argued the case paves the way for a broader application of Loper Bright to all cases of agency adjudication, contending, "When reviewing agency adjudications, courts did not invoke Chevron deference often to uphold agency decisions, as opposed to agency rules and regulations. ... the fact that [the Sixth Circuit] gave the NLRB’s decision no deference potentially opens the gates to future judicial scrutiny of every NLRB adjudication, not just adjudications that include rule making."[27]

Aftermath in the courts

In the aftermath of the Supreme Court's Loper Bright decision, lower court decisions relying on Chevron had the potential to be reconsidered. A few days after the decision, on July 2, the Supreme Court denied a request to hear a case challenging approval of a solar energy project by the Federal Energy Regulatory Commission. SCOTUS directed the United States Court of Appeals for the District of Columbia Circuit to reconsider the case following the Loper Bright decision.[25]

In another notable case, the United States Court of Appeals for the Fifth Circuit ruled on July 18, 2024, that the United States District Court for the Northern District of Texas must rehear a case opposing the Department of Labor's (DOL) 2022 environmental, social, and corporate governance (ESG) investing rule. The district court's September 2023 decision upholding the rule relied on Chevron deference, ruling courts had to defer to the DOL's interpretation of the Employee Retirement Income Security Act of 1974 (ERISA) because the law was ambiguous and prior rules supported the department's interpretation. Appeals Judge Don Willett said in his opinion the lower court needed a chance to review the merits of the case after the Supreme Court overturned Chevron deference.[28]

Legislative responses

Lawmakers also took steps following Loper Bright to either further or counteract the decision. Senator Tom Cotton (R-Ark.) introduced the Bureaucratic Overreach Review Act on July 9, 2024, in the U.S. Senate to require the Government Accountability Office to report on federal court decisions granting deference to agencies. The bill would also require federal agencies to review cases involving Chevron to "make sure the verdicts that used Chevron to justify government overreach are reviewed."[29][30]

Democratic lawmakers introduced the Stop Corporate Capture Act in an effort to amend the federal rulemaking process and, in part, codify Chevron. The bill was first introduced in the House by Representative Pramila Jayapal (D-Wash.) on March 9, 2023, and was introduced in the Senate by Senator Elizabeth Warren (D-Mass.) on July 23, 2024. Representative Jayapal urged Congress to vote on the act following the Supreme Court's decision: "Congress must immediately pass my Stop Corporate Capture Act, the only bill that codifies Chevron deference, strengthens the federal-agency rulemaking process, and ensures that rulemaking is guided by the public interest-not what's good for wealthy corporations."[31]

Arguments about Chevron deference

The following sections provide a selection of arguments about Chevron deference.

Arguments in support of Chevron deference

The following sections provide a selection of arguments in support of Chevron deference.

Chevron deference allows agencies to operate efficiently

SCOTUSblog analyst Eric Citron summarized arguments for and against the application of Chevron deference in a March 2017 article. Citron wrote that supporters assert that the principle allows federal agencies to operate most efficiently. Under Chevron, agencies interpret the statutes that Congress has instructed them to administer and issue the necessary administrative rules, rather than first seeking judicial approval on each statutory interpretation. Citron contended:[19]

“ A defender of Chevron would point out that something like its rule is necessary for the government to solve modern problems. Congress can only ever act in fits and starts, and cannot engage in day-to-day technical judgments about, say, what kind of substances are “air pollutants” and what quantity of them is dangerous to human health. So Congress instead sets out the broad policy aims, and then empowers an administrator or cabinet secretary to carry out those aims through her agency’s expertise.[8] ”


Henry Glass, a staff writer for The Christian Science Monitor wrote in a 2017 article that supporters of Chevron deference have argued that "for the government to run efficiently and effectively, agencies can’t be required to get court approval for every interpretation or reinterpretation of a law."[32]

Law professor Adrian Vermeule wrote in a 2016 Harvard Law Review article about a contributing factor to administrative efficiency:[33]

“ [F]or many of the same reasons that agencies are better positioned than courts to interpret the procedural provisions contained in their organic statutes, agencies are also better positioned than courts to assess the marginal costs and benefits of additional increments of procedure for program beneficiaries and regulated actors.[8] ”


Judges should defer to agencies for subject matter expertise

Justice John Paul Stevens wrote in his opinion for Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. that federal judges are not experts in the field. Stevens remarked:[34][35]

“ Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.[8] ”
—Justice John Paul Stevens, majority opinion in Chevron v. Natural Resources Defense Council


Law professor Adrian Vermeule in a 2016 article cited former Harvard administrative law professor Louis Jaffe's argument in Judicial Control of Administrative Action regarding the importance of expertise in procedural decisions. Jaffe wrote:[33]

“ Since procedural decisions should be made to serve the substantive task, it follows that expertness in matters of substance [is] relevant to the exercise of procedural discretion.[8] ”


Courts should defer to an agency's interpretation when Congress has expressly delegated authority to it

In a speech at Duke University School of Law, Justice Antonin Scalia argued that in a case where Congress has expressly delegated the administration of a particular statute to a federal agency, the responsibility to interpret the statute rests with the agency. Thus, where Congress clearly intended to grant authority to an agency, Scalia stated that the courts should defer to the agency's interpretation. Scalia observed:[35][36]

“ In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: 'The extent to which courts should defer to agency interpretations of law is ultimately 'a function of Congress' intent on the subject as revealed in the particular statutory scheme at issue.' An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires:

(1) Congress intended a particular result, but was not clear about it; or

(2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency.

When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion-i.e., whether its resolution of the ambiguity is reasonable.[8]

”
—Justice Antonin Scalia, Duke Law Journal

Arguments in opposition to Chevron deference

The following sections provide a selection of arguments in opposition to Chevron deference.

Deference to federal agencies infringes on the separation of powers

Justice Neil Gorsuch argued in his opinion for Gutierrez-Brizuela v. Lynch while serving on the United States Court of Appeals for the 10th Circuit that federal agencies exercise an unconstitutional combination of executive, legislative, and judicial functions. Gorsuch contended that the resulting concentration of power in federal agencies increases the power of the executive branch and infringes on the separation of powers between the three branches of government. Gorsuch's argument harkens back to James Madison's declaration in Federalist 47 that, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."[37] Gorsuch observed in his opinon:[38]

“ There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.[8] ”
—Justice Neil Gorsuch, majority opinion in Gutierrez-Brizuela v. Lynch


Mark Holden, an attorney with Koch Industries and Freedom Partners, argued in a 2018 opinion piece published by The Hill that Chevron deference violates the separation of powers, weakens the judiciary, and biases court proceedings in favor of the government:[39]

“ You could say that when it comes to administrative-law jurisprudence, lady justice is not blind; her blindfold is off and she’s winking at the lawyers, who work for the most powerful litigant in the country — the federal government. ... This is not about rejecting the administrative state — it’s about ensuring the judicial branch plays the role it was meant to play under Article III of the Constitution and fully formed in Marbury v. Madison. Federal judges are obliged to decide the law. They should 'defer' to the decisions of unaccountable bureaucrats only when the law and the Constitution are in sync with the bureaucrats’ interpretation.[8] ”
—Mark Holden, The Hill


Deference to agency interpretations undermines judicial authority

Columbia law professor Philip Hamburger argued in The Administrative Threat that deference to federal agency interpretations of statutes undermines the authority of the judiciary to determine and interpret the law. Hamburger wrote:[40]

“ When judges defer to agency interpretations, they depart from their judicial office or duty, under Article III of the Constitution, to exercise their own independent judgement..[8] ”


Justice Neil Gorsuch argued in Gutierrez-Brizuela v. Lynch that Chevron is a "doctrine for the abdication of the judicial duty." Gorsuch contended:[38]

“ Yet, rather than completing the task expressly assigned to us, rather than 'interpret[ing] . . . statutory provisions,' declaring what the law is, and overturning inconsistent agency action, Chevron step two tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty. Of course, some role remains for judges even under Chevron. At Chevron step one, judges decide whether the statute is 'ambiguous,' and at step two they decide whether the agency’s view is 'reasonable.' But where in all this does a court interpret the law and say what it is? When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct.[8] ”
—Justice Neil Gorsuch, majority opinion in Gutierrez-Brizuela v. Lynch


Justice Clarence Thomas made similar observations in his concurrence for Michigan v. Environmental Protection Agency:[41]

“ Chevron deference precludes judges from exercising that judgment, forcing them to abandon what they believe is 'the best reading of an ambiguous statute' in favor of an agency’s construction. Brand X, supra, at 983. It thus wrests from Courts the ultimate interpretative authority to 'say what the law is,' Marbury v. Madison, 1 Cranch 137, 177 (1803), and hands it over to the Executive. See Brand X, supra, at 983 (noting that the judicial construction of an ambiguous statute is 'not authoritative'). Such a transfer is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies. U. S. Const., Art. III, §1."[8] ”
—Justice Clarence Thomas, concurring opinion in Michigan v. EPA


Agency interpretations vary by administration, which creates regulatory instability

Since a federal agency's statutory interpretations can vary according to the policy priorities of the president, Gorsuch noted that the practice allows federal agencies to change regulatory interpretations at the whim of the executive, causing regulatory instability for affected individuals and industries. In his opinion for Gutierrez-Brizuela v. Lynch, Gorsuch observed:

“ Perhaps allowing agencies rather than courts to declare the law’s meaning bears some advantages, but it also bears its costs. And the founders were wary of those costs, knowing that, when unchecked by independent courts exercising the job of declaring the law’s meaning, executives throughout history had sought to exploit ambiguous laws as license for their own prerogative.[8] ”
—Justice Neil Gorsuch, majority opinion in Gutierrez-Brizeula v. Lynch[38]


Adam White, a senior fellow at the American Enterprise Institute, published an article in January 2024 arguing that deference allows for major policy changes between administrations which, in his view, creates uncertainty:[42]

“ The courts must do their own constitutional job, and in a way that best helps the other branches to do their own constitutional jobs. There may be room for some judicial deference to agencies as they work out the precise meaning of a vague law, at least when the law is new, but eventually the courts must settle the question. A law’s meaning cannot remain perpetually unsettled.[8] ”

Chevron and the states

See also: State responses to judicial deference

Chevron deference compelled federal courts to defer to a federal agency's interpretation of ambiguous statutes. State-level approaches to judicial deference vary significantly. State courts are not, by virtue of the Chevron doctrine, obliged to defer to state-level administrative agencies. Some state courts, however, have implemented judicial deference to state administrative agencies similar to the deference established federally in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and other Supreme Court cases. Below are some responses to judicial deference made by state governments:

  • Idaho lawmakers end judicial deference practices (2024): Idaho Governor Brad Little (R) on March 29, 2024, signed a bill into law to end judicial deference practices in the state. The bill, HB 626, ends judicial deference to agency interpretations of statutes or rules and requires courts to apply de novo review. The bill was introduced by Representative Mike Moyle (R) and Representative Vito Barbieri (R) on February 22, 2024, and was inspired by model legislation developed by The Goldwater Institute and the Pacific Legal Foundation. The bill passed the Idaho House of Representatives on March 11, 2024, with a vote of 58-11-1 and passed the Idaho State Senate on March 25, 2024, with a vote of 31-1-2.[43][44]
  • Nebraska lawmakers end judicial deference practices (2024): Nebraska Governor Jim Pillen (R) on March 27, 2024, signed a bill into law to end judicial deference practices in the state. The bill, LB 43, prohibits courts from deferring to agency interpretations of statutes or rules and requires courts to apply de novo review. The bill was introduced by State Senator Rita Sanders (R) on January 5, 2023, and was inspired by model legislation developed by The Goldwater Institute and the Pacific Legal Foundation. The bill passed the Nebraska State Senate on March 21, 2024, with a vote of 39-0-10.[45][46]
  • Utah lawmakers require review of statutes subject to Chevron (2024): Utah Governor Spencer Cox (R) on March 19, 2024, signed a bill into law to require state agencies to review federal regulations impacting them where Chevron deference was previously applied. Agencies can submit such regulations to the attorney general to file suit challenging the rules. The bill was introduced by Representative Casey Snider (R) on February 5, 2024. The bill passed the Utah House of Representatives on February 22, 2024, with a vote of 64-6, and passed the Utah State Senate on February 28, 2024, with a vote of 17-4.[47]
  • Indiana lawmakers ends judicial deference practices (2024): Indiana Governor Eric Holcomb (R) on March 13, 2024, signed a bill into law to end judicial deference practices in the state. The bill, HB 1003, ends judicial deference to agency interpretations of constitutional provisions, statutes, and regulations. The bill was introduced on January 8, 2024, by Representative Gregory Steuerwald (R), and was inspired by model legislation developed by The Goldwater Institute and the Pacific Legal Foundation. The bill passed the Indiana House of Representatives on January 23, 2024, with a vote of 85-10, and passed the Indiana State Senate on March 5, 2024, with a vote of 40-7.[48][49]
  • Ohio Supreme Court limits Chevron deference (2022): The Ohio Supreme Court on December 29, 2022, ruled against applications of Chevron deference in the state. In TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, the court found that state courts do not need to defer to state agency interpretations of the law. Lower courts in TWISM deferred to the Ohio Board of Registration for Professional Engineers and Surveyors’ interpretation of its engineering certification rules, which denied TWISM Enterprises’ application to provide professional engineering services because the company’s designated licensed engineer was an independent contractor rather than an employee. TWISM Enterprises appealed the decision to the Ohio Supreme Court, arguing that the agency’s interpretation of the governing statute was flawed because the law does not specify that the licensed engineer must be an employee of the business.[50]
  • Arkansas Supreme Court ends Chevron deference (2020): An April 9, 2020, ruling by the Arkansas Supreme Court limited how much deference agency interpretations of law would receive in the future. The court ruled in Meyers v. Yamato Kogyo Co. that the court should determine the meaning of state laws for itself and should not defer to state agency interpretations.[51]
  • Wisconsin Legislature ends Chevron deference (2018): The Wisconsin Supreme Court issued a decision in Tetra Tech, Inc. v. Wisconsin Department of Revenue on June 26, 2018. The ruling ended the practice of judicial deference to the statutory interpretations made by administrative agencies in the state. The court stated in the case opinion, "We have also decided to end our practice of deferring to administrative agencies' conclusions of law. However, pursuant to Wis. Stat. § 227.57(10), we will give 'due weight' to the experience, technical competence, and specialized knowledge of an administrative agency as we consider its arguments."[7]
  • Arizona lawmakers end judicial deference practices (2018): Arizona Governor Doug Ducey (R) signed House Bill 2238 into law on April 11, 2018. The law amended Arizona Revised Statutes §12-910, which addresses judicial review of administrative decisions. H.B. 2238 instructs courts handling proceedings between an agency and regulated party to decide all questions of law without deference to government agencies, including on matters of constitutional, statutory, and regulatory interpretation. This requirement "applies in any action for judicial review of any agency action that is authorized by law." The law also included two exceptions to this requirement. First, for healthcare-related appeals arising from a specific article of Arizona law, courts are instructed to defer to agencies unless they find that the agency action in question "is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." Second, agencies created pursuant to the Arizona Corporation Commission (the state's utility regulator) are exempt. At the time it was passed, the law was the first of its kind at the state or federal level.[53][54][55]

State legislation related to judicial review and deference

The following table lists bills related to judicial deference to administrative decisions that have been introduced in state legislatures. Click the column headers to sort the table by that field.

StateBill numberBill nameCurrent legislative statusMost recent actionLegislative session year
IdahoH0562Amends existing law to provide for a scope of review.DeadReported Printed and Referred to State Affairs2024
IdahoH0626Amends existing law to provide for a scope of review.EnactedReported Signed by Governor on March 28, 2024 Session Law Chapter 235 Effective: 07/01/20242024
IndianaHB1003Administrative law.EnactedPublic Law 1282024
IowaHF645A bill for an act relating to interpretation of law in administrative and judicial proceedings under the Iowa administrative procedure Act.(Formerly HF 415.)DeadPlaced on calendar under unfinished business. S.J. 747.2024
IowaSSB3119A bill for an act concerning the executive branch rulemaking process and other agency functions and related matters.(See SF 2370.)IntroducedCommittee report approving bill, renumbered as SF 2370.2024
LouisianaHB599Provides relative to adjudications and judicial review of adjudications (EG NO IMPACT See Note)DeadSenate Committee Amendment #3629 S&G Draft - Senate Committee Amendment #3629 S&G Draft2024
MaineLD1840An Act to Reform the State's Administrative and Rule-making ProceduresDeadPursuant to Joint Rule 310.3 Placed in Legislative Files (DEAD)2024
NebraskaLB43Adopt the First Freedom Act and the Personal Privacy Protection Act, authorize tribal regalia to be worn by students, change provisions relating to withholding records from the public, provide requirements for interpretation of statutes, rules, and regulations, and prohibit state agencies from imposing certain requirements on charitable organizationsEnactedProvisions/portions of LB650 amended into LB43 by AM20762024
OklahomaSB1720Administrative Procedures Act; establishing guidelines for court interpretation of certain rules and regulations. Effective date.DeadSecond Reading referred to Judiciary2024
OklahomaSB192Administrative Procedures Act; establishing guidelines for court interpretation of statutes, rules, or other regulations. Effective date.IntroducedCoauthored by Representative ODonnell (principal House author)2024
Rhode IslandH7667Provides that a court shall decide cases without deference to administrative agency interpretation of rules.DeadCommittee recommended measure be held for further study2024
TexasHB832Relating to procedures regarding hearings and meetings held by or involving the University Interscholastic League.IntroducedFiled2025
United States of AmericaHR10051Driver Technology and Pedestrian Safety Act of 2024IntroducedReferred to the House Committee on Energy and Commerce.2023
United States of AmericaHR10051Driver Technology and Pedestrian Safety Act of 2024IntroducedReferred to the House Committee on Energy and Commerce.2024
United States of AmericaHR288Separation of Powers Restoration Act of 2023Crossed overReceived in the Senate and Read twice and referred to the Committee on Homeland Security and Governmental Affairs.2024
United States of AmericaS4527Separation of Powers Restoration ActIntroducedRead twice and referred to the Committee on Homeland Security and Governmental Affairs.2024
United States of AmericaS4727SOPRA Separation of Powers Restoration Act of 2024IntroducedRead the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 438.2024
United States of AmericaS4987Restoring Congressional Authority ActIntroducedRead twice and referred to the Committee on Homeland Security and Governmental Affairs.2024
UtahHB0470Federal Agency Regulatory Review AmendmentsEnactedGovernor Signed in Lieutenant Governor's office for filing2024

Other types of deference

See also: Deference in the context of the administrative state

Below is a list of various deference regimes cited by the U.S. Supreme Court in agency interpretation cases:[56]

  • No deference: ad hoc judicial reasoning
  • Anti-deference: the court invokes a presumption against the agency interpretation in criminal cases (the rule of lenity) and in some cases in which the agency interpretation raises serious constitutional concerns (the canon of constitutional avoidance)
  • Consultative deference: the court, without invoking a named deference regime, relies on some input from the agency (e.g. amicus briefs, interpretive rules or guidance, or manuals) and uses that input to guide its reasoning and decisionmaking process
  • Skidmore deference: agency interpretation is entitled to "respect proportional to its power to persuade," with such power determined by the interpretation's "thoroughness, logic and expertness"; its "fit with prior interpretations"; etc.
  • Beth Israel deference: pre-Chevron test permitting reasonable interpretations that are consistent with the statute
  • Chevron deference: reasonable agency interpretations of ambiguous statutes accepted. If the statute is clear, no deference to agency
  • Curtiss-Wright deference: super-strong deference to executive interpretations involving foreign affairs and national security

Noteworthy events

Senator Warren introduces bill to codify Chevron (2024)

Senator Elizabeth Warren (D-Mass.) on July 23, 2024, introduced a bill into the United States Senate aimed at enacting broad changes to the regulatory process, including codification of the Chevron doctrine. The bill, referred to as the Stop Corporate Capture Act, was first introduced in December 2021 by U.S. Representative Pramila Jayapal (D-Wash.). Rep. Jayapal reintroduced the act in the United States House of Representatives in March 2023, before the Supreme Court overturned Chevron .[57][58]

SCOTUS overturns Chevron deference (2024)

The U.S. Supreme Court decided 6-3 on June 28, 2024, to overturn the 1984 ruling in Chevron v. Natural Resources Defense Council, holding that federal courts may not defer to an agency’s interpretation of an ambiguous statute. In two consolidated cases—Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce—the court ruled that the Administrative Procedure Act (APA) requires courts to rely on their own interpretation of ambiguous statutes instead of deferring to agencies.

The June 28 decision overturned the doctrine, with Chief Justice John Roberts arguing in the majority opinion that Chevron goes against the APA. Roberts wrote, “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. … But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

Justice Elena Kagan argued in a dissenting opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, that deference should be given to agency expertise to clarify ambiguities in statutes: “Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court.”[22]

SCOTUS hears oral argument in challenge to Chevron deference (2023)

The United States Supreme Court on January 17, 2024, heard oral argument in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce—consolidated cases challenging an agency’s interpretation of a federal fishery law that could affect future applications of Chevron deference by the federal courts.

SCOTUSblog analyst Amy Howe wrote that the court was divided at oral argument, but a majority seemed prepared to overturn or limit Chevron deference. Justice Brett Kavanaugh argued that the doctrine “ushers in shocks to the system every four or eight years when a new administration comes in, whether it’s communications law or securities law or competition law or environmental law.” Justice Ketanji Brown Jackson, however, contended that Chevron is important because it does “the very important work of helping courts stay away from policymaking.” The justices also, according to Howe, “debated what the impact of a decision overruling Chevron would be.”[59]

SCOTUS takes up second Chevron case (2023)

The U.S. Supreme Court on October 13, 2023, agreed to hear Relentless, Inc. v. Department of Commerce—a case challenging an agency’s interpretation of a federal fishery law that could affect future applications of Chevron deference by the federal courts. The case is being heard in conjunction with Loper Bright Enterprises v. Raimondo, which challenges the same regulation.

The two cases have raised questions among journalists and legal scholars about whether the court will overturn Chevron deference or clarify the scope of the doctrine’s application. Justice Ketanji Brown Jackson recused herself from Loper Bright Enterprises v. Raimondo after participating in the case while serving on a lower court, however, she will participate in the decision of Relentless, Inc. v. Department of Commerce.[60][61]

SCOTUS to hear case challenging Chevron deference (2023)

The U.S. Supreme Court on May 1, 2023, agreed to hear Loper Bright Enterprises v. Raimondo—a case that could clarify the court’s approach to Chevron deference.[62]

Commercial fishermen in the case appealed an August 2022 ruling from a divided panel of the United States Court of Appeals for the District of Columbia Circuit that applied Chevron deference to uphold the National Marine Fisheries Service’s (NMFS) interpretation of a federal fishery law allowing the use of compliance monitors on certain fishing boats. While the federal law is silent on who must pay for the use of such monitors, the judges deferred to the NMFS’ interpretation of the statute requiring fishermen to pay costs for the use of compliance monitors. “Although the Act may not unambiguously resolve whether the Service can require industry-funded monitoring,” wrote Judge Judith Rogers in the opinion, “the Service's interpretation of the Act as allowing it to do so is reasonable.”[62][63]

The fisherman appealed the ruling to the U.S. Supreme Court, arguing that the D.C. Circuit’s decision “perceives ambiguity in statutory silence, where the logical explanation for the statutory silence is that Congress did not intend to grant the agency such a dangerous and uncabined authority.” The fishermen further urged the U.S. Supreme Court to reconsider its approach to Chevron deference, stating, “Whether by clarifying Chevron or overruling it, this Court should grant review and reverse the clear agency overreach at issue here.”[64]

Fifth Circuit declines to apply Chevron deference in bump stock ruling (2023)

The United States Court of Appeals for the Fifth Circuit ruled 13-3 on January 6, 2023, that the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its statutory authority when it adopted a rule banning bump stock devices. Since the rule implemented criminal penalties for those found in violation, the court departed from prior appellate court reasoning on the issue and declined to apply Chevron deference to the agency’s changed interpretation of the underlying statutes.[65][66]

Following guidance issued by President Donald Trump (R) in 2018, the ATF changed its interpretation of the Gun Control Act and the National Firearms Act to find that bump stocks qualify as machine guns and can therefore be prohibited. Gun owners and organizations challenged the rule, arguing in multiple lawsuits that the agency lacked the authority under federal law to issue the rule. Three appellate courts upheld the ban and the U.S. Supreme Court declined to reconsider the decisions—leaving in place a district court ruling that applied Chevron deference to the ATF’s changed interpretation of the law.[65][66]

After a three-judge panel of the Fifth Circuit upheld the ban in December 2019, the en banc court voted to enjoin the ATF rule. The majority concluded in part that the imposition of criminal penalties by a federal agency prompts the rule of lenity to supersede Chevron deference. Judge Jennifer Elrod, writing for the majority, argued that “Chevron deference shifts the responsibility for lawmaking from the Congress to the executive, at least in part. That tradeoff cannot be justified for criminal statutes, in which the public's entitlement to clarity in the law is at its highest.”[65][66]

The ATF had not commented on the ruling as of January 19, 2023.

SCOTUS considers Chevron deference in Medicare challenge (2021-2022)

See also: American Hospital Association v. Becerra

The following timeline identifies key events in American Hospital Association v. Becerra, a case that concerned applications of Chevron deference.

The case challenged a 2018 U.S. Department of Health and Human Services (HHS) decision to reduce the reimbursement rate that HHS pays certain hospitals for treating Medicare patients. A hospital coalition filed suit, arguing that HHS’ decision in the absence of adequate supporting data violated the Medicare statute. The case questioned whether courts should exercise Chevron deference and defer to HHS’ formulation of Medicare drug reimbursement rates according to the agency’s statutory interpretation.

June 2022: SCOTUS finds HHS violated statutory authority, declines to weigh in on Chevron deference

The U.S. Supreme Court on June 15, 2022, unanimously held that HHS' interpretation of the underlying statute in the case was flawed and that the agency acted in violation of its statutory authority when it reduced the reimbursement rates. Justice Brett Kavanaugh's majority opinion made no mention of Chevron deference.[67]

November 2021: SCOTUS hears oral argument in case that could limit Chevron deference

The U.S. Supreme Court on November 30, 2021, heard oral argument in American Hospital Association v. Becerra, a case that could have affected the scope of agency powers by limiting future applications of Chevron deference.

The court “appeared receptive to the claim that Medicare overstepped its authority when it cut the amount that it paid certain hospitals for drugs they dispensed in their outpatient departments,” observed University of Michigan law professor Nicholas Bagley in an analysis for SCOTUSblog. “None of the justices voiced sympathy with the government’s argument that Congress had precluded judicial review of the question,” Bagley continued, adding that “several of the conservative justices toyed with the possibility of abandoning Chevron deference.”[68]

Professors Richard A. Epstein and Mario Loyola]contributed an opinion piece to The Wall Street Journal arguing that a potential ruling narrowing applications of Chevron deference would serve to rein in agency authority. “Chipping away at Chevron won’t by itself solve the larger problem in the rise of the administrative state,” claimed the authors. “But curbing abuses in agency rulemaking by returning to the Administrative Procedure Act would be a good start.”[69]

Staff writer Matt Ford of The New Republic, on the other hand, argued that such a ruling would empower judges to substitute their reasoning for that of neutral policy experts. “That would be a massive shift in the separation of powers—maybe back to Congress and the American people themselves, as Gorsuch and the other justices have suggested, but certainly towards the unelected judges who would be freed from the burden of deference to, well, anyone,” wrote Ford.[70]

Sixth Circuit considers applications of Chevron deference in criminal contexts (2021-2022)

The following timeline identifies key events in a 2021 lawsuit, Gun Owners of America v. Garland, a case that concerned applications of Chevron deference to agency interpretations of statutes that carry criminal penalties.

October 2022: SCOTUS declines to hear case

The Supreme Court issued an order on October 3, 2022, declining to hear Gun Owners of America v. Garland. The order did not provide a reason for the decision.[71]

December 2021: Judges split on appropriateness of Chevron deference in criminal contexts following rehearing en banc

A majority of the judges of the United States Court of Appeals for the Sixth Circuit voted to grant en banc review of this case and vacate the previous decision on June 25, 2021. The full court’s decision was evenly divided following arguments on October 20, 2021. Eight judges voted to affirm the decision of the district court and eight judges voted to reverse the decision. As a result of the split decision, the district court’s ruling was affirmed on December 3, 2021.[72]

March 2021: Sixth Circuit three-judge panel limits applications of Chevron deference in criminal contexts

A divided three-judge panel of the United States Court of Appeals for the Sixth Circuit on March 25, 2021, limited applications of Chevron deference in the criminal context in its Gun Owners of America v. Garland decision, which invalidated the Trump administration’s bump stock ban.[73][74]

The court declined to apply Chevron deference to the Bureau of Alcohol, Tobacco, and Firearm's statutory interpretation supporting the agency’s rule that allowed bump stocks to be classified as machine guns. The court held that Chevron deference did not apply because the law in question was a criminal statute. The court also found that the district court should have permitted the plaintiffs’ request for an injunction to block the rule.[73][74]

“Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns,” wrote Judge Alice Batchelder in the opinion, “we hold that an administering agency's interpretation of a criminal statute is not entitled to Chevron deference.”[73][74]

Judge Eric Murphy joined Judge Batchelder in the opinion. Judge Helene White dissented.[74]

Judge White disagreed with the court’s limitation on Chevron deference. “The Supreme Court has applied Chevron in the criminal context in three binding decisions—Chevron itself, Babbitt, and O'Hagan—and has never purported to overrule those cases,” she wrote.[73][74]

The court remanded the case to the district court and eliminated the possibility of a nationwide injunction by limiting any subsequent injunctions to the four states within the Sixth Circuit.[73][74]

See also

External links

Footnotes

  1. ↑ Bloomberg, "Get Ready, Supreme Court Fans. Brush Up on Your Chevron Doctrine." February 3, 2017
  2. ↑ JUSTIA, "Chevron Deference: Your Guide to Understanding Two of Today’s SCOTUS Decisions," March 21, 2012
  3. ↑ FindLaw, "CHEVRON US A. v. NATURAL RES. DEF. COUNCIL," accessed August 16, 2017
  4. ↑ Legal Information Institute, "Chevron Deference," accessed August 18, 2017
  5. ↑ The Heritage Foundation, "Who Will Regulate the Regulators? Administrative Agencies, the Separation of Powers, and Chevron Deference," May 7, 2015
  6. ↑ 6.0 6.1 U.S. Department of Justice, "CHEVRON U.S.A. INC., PETITIONER v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. AMERICAN IRON AND STEEL INSTITUTE, ET AL., PETITIONERS v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. WILLIAM D. RUCKELSHAUS, ADMINISTRATOR, ENVIRO...," accessed February 20, 2024
  7. ↑ 7.0 7.1 7.2 7.3 Supreme Court of the United States (via Findlaw), Chevron U.S.A. v. Natural Res. Def. Council, decided June 25, 1984 Cite error: Invalid <ref> tag; name "opinion" defined multiple times with different content
  8. ↑ 8.00 8.01 8.02 8.03 8.04 8.05 8.06 8.07 8.08 8.09 8.10 8.11 8.12 8.13 8.14 8.15 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  9. ↑ Virginia Law Review, "Chevron Step Zero," 2006
  10. ↑ Notre Dame Law Review, "Chevron Step Two's Domain," accessed May 22, 2018
  11. ↑ Fordham Law Review, "Step Zero After City of Arlington," 2014
  12. ↑ American Bar Association, "The decline of deference: Is the Supreme Court pruning back the Chevron doctrine?" accessed May 24, 2018
  13. ↑ New York Times, "Should Agencies Decide Law? Doctrine May Be Tested at Gorsuch Hearing," March 14, 2017
  14. ↑ 14.0 14.1 14.2 14.3 UNLV William S. Boyd School of Law Legal Studies Research Paper, "Loud and Soft Anti-Chevron Decisions," September 9, 2017
  15. ↑ Supreme Court of the United States, "Pereira v. Sessions, Attorney General," June 21, 2018
  16. ↑ 16.0 16.1 The Harvard Gazette, "'Chevron deference' faces existential test," January 16, 2024
  17. ↑ New York Times, "Trump’s New Judicial Litmus Test: Shrinking ‘the Administrative State’," March 26, 2018
  18. ↑ School of Law University of Georgia, "Judge Kavanaugh, Chevron Deference, and the Supreme Court," September 3, 2018
  19. ↑ 19.0 19.1 SCOTUSblog, "In an opinion that shuns Chevron, the court rejects a Medicare cut for hospital drugs," June 15, 2022 Cite error: Invalid <ref> tag; name "blog" defined multiple times with different content
  20. ↑ SCOTUSblog, "Supreme Court likely to discard Chevron," January 17, 2024
  21. ↑ Supreme Court of the United States, "Relentless, Inc., et al., v. Department of Commerce, et al." January 17, 2024
  22. ↑ 22.0 22.1 22.2 22.3 22.4 22.5 U.S. Supreme Court, "Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al.," June 28, 2024
  23. ↑ 23.0 23.1 SCOTUSblog, "Loper Bright Enterprises v. Raimondo," accessed August 16, 2024
  24. ↑ Forbes, "A Deep State Guide To Post-Chevron Regulating," July 9, 2024
  25. ↑ 25.0 25.1 Grist, "Recent Supreme Court decisions are already slowing climate progress," August 19, 2024
  26. ↑ The Guardian, "US air force avoids PFAS water cleanup, citing supreme court's Chevron ruling," August 12, 2024
  27. ↑ JD Supra, "Sixth Circuit Declines to Defer to NLRB Decision Citing Loper Bright," August 28, 2024
  28. ↑ United States Court of Appeals for the Fifth Circuit, "Utah v. Department of Labor," July 18, 2024
  29. ↑ Congress.gov, "S. 4641 - Bureaucratic Overreach Review Act," accessed August 19, 2024
  30. ↑ Tom Cotton, "Cotton introduces legislation to mandate review of cases that used Chevron as basis," July 9, 2024
  31. ↑ Congressional Progressive Caucus, "Progressive Caucus Chair Condemns Supreme Court Ruling Gutting 40-Year Legal Precedent for Federal Protections to Benefit Large Corporations; Urges Congress to Pass Stop Corporate Capture Act to Codify Chevron Deference," June 28, 2024
  32. ↑ Christian Science Monitor, "Gorsuch hearings: Should agencies – or courts – decide the law?" March 22, 2017
  33. ↑ 33.0 33.1 Harvard Law Review, "Essay: Deference and Due Process," May 10, 2016
  34. ↑ FindLaw, "CHEVRON US A. v. NATURAL RES. DEF. COUNCIL," accessed August 30, 2017
  35. ↑ 35.0 35.1 Bloomberg, "Get Ready, Supreme Court Fans. Brush Up on Your Chevron Doctrine." February 3, 2017
  36. ↑ Duke Law Journal, "JUDICIAL DEFERENCE TO ADMINISTRATIVE INTERPRETATIONS OF LAW," June 1989
  37. ↑ The Avalon Project, "The Federalist Papers: No. 47," accessed August 30, 2017
  38. ↑ 38.0 38.1 38.2 United States Court of Appeals Tenth Circuit, "No. 14-9585, Gutierrez-Brizuela v. Lynch," August 23, 2016
  39. ↑ Mark Holden, "There’s nothing 'fair' about judges tipping the scales in favor of federal agencies," April 5, 2018
  40. ↑ Hamburger, P. (2017). The Administrative Threat. New York, NY: Encounter Books. (page 43).
  41. ↑ AEI, "Chevron Deference vs. Steady Administration," January 24, 2024
  42. ↑ Goldwater Institute, "Victory! Idaho Becomes Latest State to End Judicial Deference to Administrative State," March 29, 2024
  43. ↑ Idaho Legislature, "House Bill 626" accessed April 3, 2024
  44. ↑ Goldwater Institute, "Victory! Nebraska Ends Judicial Deference to Bureaucrats & Protects Donor Privacy," March 28, 2024
  45. ↑ Nebraska Legislature, "LB43 - Adopt the First Freedom At and the Personal Privacy Act, authorize tribal regalia to be worn by students, change provisions relating to withholding records from the public, provide requirements for interpretation of statutes, rules, and regulations, and prohibit state agencies from imposing certain requirements on charitable organizations," accessed April 3, 2024
  46. ↑ Utah State Legislature, "H.B. 470 Federal Agency Regulatory Review Amendments," accessed August 19, 2024
  47. ↑ The Goldwater Institute, "Victory! Indiana Ends Judicial Deference to Unelected Government Bureaucrats," March 14, 2024
  48. ↑ Indiana General Assembly, "Actions for House Bill 1003," accessed April 8, 2024
  49. ↑ Supreme Court of Ohio, "TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors," December 29, 2022
  50. ↑ Supreme Court of Arkansas, "Meyers v. Yamato Kogyo Co.," April 9, 2020
  51. ↑ Constitution Revision Commission, "Proposal Analysis - P6," January 29, 2018
  52. ↑ Pace Law Library, "Arizona Passes New Law Limiting Deference to Agencies," April 12, 2018
  53. ↑ Arizona House of Representatives, "House Bill 2238," 2018
  54. ↑ Endangered Species Law and Policy, "Arizona becomes the First State to Eliminate Chevron Deference," April 12, 2018
  55. ↑ Cite error: Invalid <ref> tag; no text was provided for refs named eskridge-baer
  56. ↑ Congress.gov, "S. 4749 - A bill to amend title 5, United States Code, to require disclosure of conflicts of interest with respect to rulemaking, and for other purposes." accessed August 19, 2024
  57. ↑ Congress.gov, "H.R. 1507 - Stop Corporate Capture Act," accessed August 19, 2024
  58. ↑ SCOTUSblog, "Supreme Court likely to discard Chevron," January 17, 2024
  59. ↑ The Hill, "Supreme Court adds second case in battle over Chevron doctrine," October 13, 2023
  60. ↑ SCOTUSblog, "Justices grant four new cases, including Chevron companion case," October 13, 2023
  61. ↑ 62.0 62.1 SCOTUSblog, "Supreme Court will consider major case on power of federal regulatory agencies," May 1, 2023
  62. ↑ U.S. Court of Appeals for the District of Columbia Circuit, "Lopez Bright Enterprises v. Raimondo," August 12, 2022
  63. ↑ United States Supreme Court, "Petition for Writ of Certiorari, Lopez Bright Enterprises v. Raimondo," accessed May 2, 2023
  64. ↑ 65.0 65.1 65.2 Reuters, "Bump stock ruling highlights appellate dispute: Can agencies decide what is a crime?" January 9, 2023
  65. ↑ 66.0 66.1 66.2 United States Court of Appeals for the Fifth Circuit, "Cargill v. Garland," January 6, 2023
  66. ↑ U.S. Supreme Court, "American Hospital Association v. Becerra," June 15, 2022
  67. ↑ SCOTUSBlog, "Justices mull Chevron and voice skepticism of Medicare’s rate cut for hospital drugs," November 30, 2021
  68. ↑ Wall Street Journal, "The Supreme Court’s Chance to Rein In the Regulatory State," December 7, 2021
  69. ↑ New Republic, "The Supreme Court Is Poised to Sabotage the Administrative State," November 30, 2021
  70. ↑ Scotusblog.com, "Order List: 598 U.S.," October 3, 2022
  71. ↑ United States Court of Appeals for the Sixth Circuit, "Gun Owners of Am., Inc. v. Garland," December 3, 2021
  72. ↑ 73.0 73.1 73.2 73.3 73.4 Reason, "Divided Sixth Circuit Panel Rejects Chevron Deference for Interpretation of Criminal Statute," March 25, 2021
  73. ↑ 74.0 74.1 74.2 74.3 74.4 74.5 United States Court of Appeals for the Sixth Circuit, "Gun Owners of America v. Garland," March 25, 2021
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Terms
Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
Bibliography
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