I still don't really understand it, or how it's applied or what political motivations there might be. Any law people here? Appreciated if you chime in.
www.law.cornell.edu
One of the most important principles in administrative law, the “Chevron deference” was coined after a landmark case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). The Chevron deference is referring to the doctrine of judicial deference given to administrative actions. In Chevron, the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as Congress had not spoken directly to the precise issue at question.
The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency. Rather, as Justice Stevens wrote in Chevron, when the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s action was based on a permissible construction of the statute.
First, the Chevron deference requires that the administrative interpretation in question was issued by the agency charged with administering that statute. Accordingly, interpretations by agencies not in charge of the statute in question are not owed any judicial deference. Also, the implicit delegation of authority to an administrative agency to interpret a statute does not extend to the agency’s interpretation of its own jurisdiction under that statute.
Generally, to be accorded Chevron deference, the agency’s interpretation of an ambiguous statute must be permissible, which the court has defined to mean “rational” or “reasonable.” In determining the reasonableness for the particular construction of a statute by the agency, the age of that administrative interpretation as well as the congressional action or inaction in response to that interpretation at issue can be a useful guide; if Congress was aware of the interpretation when it acted or refrained from action, and when the agency’s interpretation is not inconsistent with the clear statutory language.
In subsequent cases, the Supreme Court has narrowed the scope of Chevron deference, holding that only the agency interpretations reached through formal proceedings with the force of law, such as adjudications, or notice-and-comment rulemaking, qualify for Chevron deference, while those contained in opinion letters, policy statements, agency manuals, or other formats that do not carry the force of law are not warranted a Chevron deference. In such cases, the Court may give a slightly less deferential treatment to the agency’s interpretation, giving a persuasive value under the Court’s “Skidmore deference” analysis.
It might help to look at the recent Loper Bright case to see how Chevron deference plays out.
Congress passed a law requiring the Executive Branch to regulate commercial fishing. The law explicitly states that three categories of fishing boats are required to cover the cost of having an observer on board to ensure compliance with the law. The law was silent as to fishing boats that were not one of the three categories.
The agency implemented a regulation requiring herring boats to cover the cost of an observer. Herring boats are not one of the three categories identified by the federal law.
The owners of herring boats filed a lawsuit asking the courts to rule that they could not be required to pay for observers because the federal law in question only listed other boats, and was silent as to herring boats. In other words, the owners of the herring boats argued that the federal agency was not authorized to make them pay the cost under the federal law in question.
Basically, the executive branch does not have broad power to do whatever it wants. There must be explicit or implied authority for the action in question.
In the herring boat case the district courts and appeals courts held that the federal law was ambiguous with regards to whether or not the law authorizes charging for observers for boats that are not one of the three types named in the federal law. Under Chevron, the courts further held that charging owners of herring boats was reasonable, and ruled against the owners of the herring boats (roughly speaking, the courts said “the law is ambiguous, and the agency’s decision to charge herring boat owners was not completely crazy, so we will let the agency decision stand “)
The Supreme Court tossed out Chevron and remanded the cases to the lower courts to make new decisions that are not based on Chevron.
Simplifying for purposes of discussion, the Supreme Court said that the courts need to decide if the federal law in question authorizes the federal agency to charge herring boat owners without deferring to the agency’s decision. The law either authorizes it, or it doesn’t.
There’s no doubt that Loper is a significant decision, but it’s not entirely clear how much difference it will make in the real world. Chevron had been limited by prior Supreme Court decisions and the APA also limits agency actions.
One line of commentary says that Loper frees people and businesses from overreaching agency actions that go beyond the laws passed by the legislative branch.
Another line says Loper will make things worse because interpretation of federal law will now (in many cases) fall on judges, who are not elected (I.e. this line says Loper replaces executive branch decision makers, who ultimately report to the president who is elected, with non elected judges).
The counter to this is that the constitution gives the courts authority to construe federal law, and the courts are experts at construing the law (Loper actually says that the courts are the experts)(editorial comment: this is a little annoying because it seems to conflate having the legal power to decide with expertise, and it also goes against the tone of many Supreme Court decisions stating that the judicial branch should defer to the other two branches whenever possible because the judicial branch is not elected).
I suspect Loper will have less of an impact than some have suggested. First, Loper leaves prior decisions decided under Chevron in place. Second, as I read the decision it seems to say that courts are allowed to defer to agency decisions to some extent even though they are no longer required to do so (this aspect of the decision is not entirely clear to me so I can’t say with certainty that my impression is 100% correct). Also, in theory congress can be more vigilant and pass laws that are less ambiguous. As I read Loper, the court seems to be saying “Congress, you can explicitly delegate the decision to a federal agency, but ambiguity is not sufficient.” Delegating purely legislative power to the executive branch is of course a constitutional no-no, so this is not a blank check.
The above is just my initial take on Loper. I’m sure there are plenty of experts in the field of administrative law that would disagree with at least some of it.
