Chevron Deference in a Conservative Court

By: Patrick Ales

Edited By: Maayan Abouzaglo and Arianna Staton

The doctrine of Chevron Deference, may not be inherently political, but as with a large portion of issues on the Supreme Court, the divides are drawn across party lines. The appointment of Amy Coney Barrett to the Supreme Court has given conservatives a 6-3 majority that has not been seen since the 1930s. Although 14 of the 18 most recent appointments have been made by Republican presidents, the court has almost always maintained a 5-4 split with a conservative swing vote, the last of which was Anthony Kenndedy before his retirement. [1] This is coming to an end, as the Trump administration filled three vacancies in the Court and established a new overwhelming conservative majority, leaving uncertain the future of reproductive rights and healthcare. A less talked about consequence of a conservative majority is the future of Chevron Deference, primarily used as a means to reign in the power of the courts to rule on legislative issues, which may see an impending reduction in its scope. The doctrine stems from Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984), in which the NRDC claimed that the Environmental Protection Agency (EPA) had adopted an incorrect interpretation of a 1977 amendment to the Clean Air Act of 1963. [2] This interpretation allowed corporations to evade a review process for air pollution in their plants, but was rejected in a lower court. The Supreme Court would eventually hear Chevron’s appeal and rule that it was not in the Court’s scope to rule on the interpretation of an executive agency, and that the interpretation was formed from a reasonable construction of the statute in question. Holding that the agency in question was tasked with the construction of an answer to an ambiguous legislative statute, the decision set forth a precedent in which courts should defer to the answer of an agency. 

Among the most outspoken of the recent Trump appointees to the Court is Justice Neil Gorsuch. He calls into question the efficiency of the doctrine in a time where the interpretations of executive agencies change rather often, asking whether it is reasonable to ask ordinary citizens “to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held reasonable?” [3] His willingness to publicly speak out against the doctrine in a case that did not expressly warrant consideration of Chevron highlights the sentiment of the conservative majority. Gorsuch takes a similar approach to the late Justice Scalia in his assessment of the two-step Chevron process, in which both justices found it increasingly difficult to find the ambiguous prerequisite applicable to most statutes. [4] 

Gorsuch and the conservative wing took a concrete step toward limiting the scope of the ambiguity clause in Wisconsin Central Ltd. v. United States 200 U.S. 321 (2018). [5] Justice Gorsuch wrote the majority and concluded that employee stock options were not considered “money remunerations” and were thus not subject to the specific act. [6] Justice Breyer of the liberal wing of the Court authored the dissent and argued that there was sufficient ambiguity as to whether stock options were taxable, which would have led him to defer to the Treasury’s reasonable interpretation of the law. [7] The case was split across party lines as Justice Kennedy often agreed with the conservatives in his interpretation of Chevron. The limitations being imposed upon the doctrine also go as far as the reimplementation of the “major issues” question, in which deference is invalidated because the problem at hand is of grave political or economic consequence and should be adjudicated to be more than “reasonable.” In King v. Burwell [8], the Court invoked the major issue doctrine before delving into the qualifications of the case with regards to Chevron. Rather, they saw the issue of the Affordable Care Act to be too important to leave to disputed agency interpretation [9]. While the decision of the case itself has little to do with deference, the implementation of the major issues doctrine opened the door for further limitations to the current scope of Chevron. 

In the same vein, Justice Kavanaugh has expressed hesitancy in allowing for de novo review by the Supreme Court on these “major” issues. Instead, he argues in his dissent of rehearing United States Telecom Association v. FCC that issues of such profound importance should be left to Congress and not decided by the Court or agency in the case of ambiguity. [10] Kavanaugh’s implementation of the major rules doctrine adheres strongly to nondelegation, in which Congress cannot delegate its legislative powers to other branches of government. His rejection of judicial review of the statutes, which would naturally be covered under Chevron, seeks to preserve the legislative authority of Congress [11] and puts greater trust in the lawmaking process, in spite of what his fellow justice Amy Coney Barrett calls the “often-chaotic legislative process.” [12] Barrett has not dealt with Chevron in her time as a judge due to jurisdictional differences with judges like Kavanaugh, whose court saw many more administrative law questions. However, Justice Barrett has often compared her judicial philosophy to the late Justice Scalia, who was not as apprehensive of Chevron as some of his colleagues but still found issues in the loose barrier to find cause for deference to be used. This same reservation has been emulated by Justice Gorsuch. This is not to say that Scalia’s influence on the Court is pro-Chevron, but a strict adherence to his textualism may lead Justice Barrett to be less hostile toward the principle of deference. With her documented distrust of the outcomes of the legislative process to serve a targeted purpose [13], Justice Barrett may be the least willing conservative to revisit the scope of Chevron. 

The trend supported by the first two Trump appointees to the Court is that a more cemented conservative majority would be hostile towards Chevron and in favor of expanding the effects of the nondelegation doctrine. While it remains to be seen what the impact of Justice Barrett’s appointment will be on specific cases of administrative law, it is hard to envision a case where she disagrees with the conservative wing of the court. Barrett is by no means the new ideological center of the court, which probably still remains in the hands of Chief Justice Roberts or even Justice Kavanaugh [14], but administrative law could become one of Barrett’s more moderate points of reference. Mostly due to her strict adherence to originalism, like Justice Scalia, there is uncertainty about how she will apply Chevron, especially since Justice Barrett has not adjudicated on a deference case in her time on the bench. [15] Whether she chooses to emulate Justice Kavanaugh and seek to broaden the scope of the non delegation doctrine through Chevron, or take the route of Justices Gorsuch and Thomas in a more aggressive form of textualism regarding Chevron’s first step [16], Justice Barrett presents a new barrier for proponents of the doctrine and a backbone for those that wish to see its scope reigned in.

NOTES:

1.  Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” 

2.  Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984)

3.  Yeatman, William. “Supreme Court Proves Me Wrong on Judicial Deference.”

4.  Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.”

5.  Wisconsin Central Ltd. v. United States 200 U.S. 321 (2018)

6.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

7. Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

8.  King v. Burwell 576 U.S. 988 (2015)

9.  Sebring, Michael. “The Major Rules Doctrine.” 

10.  Sebring, Michael. “The Major Rules Doctrine.” 

11. Barnett, Kent, Christina L Boyd, and Christopher J Walker. “Judge Kavanaugh, Chevron Deference, and the Supreme Court.”

12.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

13.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

14.  Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” 

15.  Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.” 

16. U.S. Congressional Research Service, Valerie Brannon, and Jared Cole, Chevron Deference: A Primer § (22, 23). 

BIBLIOGRAPHY:

Barnett, Kent, Christina L Boyd, and Christopher J Walker. “Judge Kavanaugh, Chevron Deference, and the Supreme Court.” The Regulatory Review, September 5, 2018. https://www.theregreview.org/2018/09/03/barnett-boyd-walker-kavanaugh-chevron-deference-supreme-court/. 

Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.” Yale Journal on Regulation, July 3, 2018. 

Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” CNN. Cable News Network, September 26, 2020. https://www.cnn.com/2020/09/26/politics/supreme-court-conservative/index.html 

Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.” Roll Call. Accessed December 29, 2020. https://www.rollcall.com/2020/10/08/barrett-with-scalia-as-model-may-be-a-moderate-on-regulation/. 

Sebring, Michael. “The Major Rules Doctrine.” Georgetown Law. Accessed December 29, 2020. https://www.law.georgetown.edu/public-policy-journal/blog/the-major-rules-doctrine/. 

U.S. Congressional Research Service, Valerie Brannon, and Jared Cole, Chevron Deference: A Primer § (2019). 

Yeatman, William. “Supreme Court Proves Me Wrong on Judicial Deference.” Cato Institute, March 2, 2020. https://www.cato.org/blog/supreme-court-proves-me-wrong-judicial-deference.