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Court Opinion re Chevron Deference is an Amusing Read/Skim

Some commentators have briefly explained the background and general significance of the latest SCOTUS decision overturning the so-called Chevron deference. Some of them do a good job, there is no need to repeat that here.

The opinion document is 114 pages in total: the syllabus (summary) is about 8 pages, the opinion of the court is about 27 pages, and the rest are the concurring and dissenting opinions. It is worth a skim for those who are interested in these things. I will simply provide a few quotes that are amusing. Please note I am not a lawyer.

Regarding what happened back in 1984 (p.18):

Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional approach. The question in the case was whether an EPA regulation “allow[ing] States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single ‘bubble’” was consistent with the term “stationary source” as used in the Clean Air Act.

How often does “a marked departure from the traditional approach” work out well?

Here is one take on it (p.23):

Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. … Chevron gravely erred, though, in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play.

Ouch. Re “just because an administrative interpretation is in play”: Frigging bureaucrats with their power grabs. Later in the same paragraph:

The very point of the traditional tools of statutory construction—the tools courts use every day—is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.

Ouch again.

As for the mess this has caused (p.26):

In truth, Chevron’s justifying presumption is, as Members of this Court have often recognized, a fiction. … So we have spent the better part of four decades imposing one limitation on Chevron after another, pruning its presumption on the understanding that “where it is in doubt that Congress actually intended to delegate particular interpretive authority to an agency…

It goes on to provide a few examples. One is reproduced below.

We have said that Chevron applies only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead, 533 U. S., at 226–227. In practice, that threshold requirement—sometimes called Chevron “step zero”—largely limits Chevron to “the fruits of notice-and-comment rulemaking or formal adjudication.” 533 U. S., at 230.

Ultimately, it doesn’t work and apparently didn’t to begin with (p.29):

Chevron has proved to be fundamentally misguided. Despite reshaping judicial review of agency action, neither it nor any case of ours applying it grappled with the APA—the statute that lays out how such review works. Its flaws were nonetheless apparent from the start, prompting this Court to revise its foundations and continually limit its application. It has launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning.
Experience has also shown that Chevron is unworkable. The defining feature of its framework is the identification of statutory ambiguity, which requires deference at the doctrine’s second step. But the concept of ambiguity has always evaded meaningful definition. As Justice Scalia putthe dilemma just five years after Chevron was decided: “How clear is clear?” 1989 Duke L. J., at 521.

Of course it is ambiguous and therefore arguable. Lawyers, judges and bureaucrats would be out of the job if things weren’t arguable.

The opinion keeps on hammering it (p.33):

But statutory ambiguity, as we have explained, is not a reliable indicator of actual delegation of discretionary authority to agencies. Chevron thus allows agencies to change course even when Congress has given them no power to do so. By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty.

The implications, of course, are also important. If we are to “leave Chevron behind”, then what happens to those parties which have suffered because of it? (p.34)

By doing so, however, we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.

The past is admittedly another matter but putting it this way is rather… well, convenient.

In conclusion (p.35):

The dissent ends by quoting Chevron: “‘Judges are not experts in the field.’” Post, at 31 (quoting 467 U. S., at 865). That depends, of course, on what the “field” is. If it is legal interpretation, that has been, “emphatically,” “the province and duty of the judicial department” for at least 221 years. … Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority…

I interpret that as “Get bent, the courts can and will do its job (or at least pretend to)”.

As for the concurring and dissenting opinions, it reads like, on the surface at least, that they are going in circles about when the court ceases to be an “expert in the field” and precedent.

Justice Clarence Thomas, concurring:

Chevron deference was “not a harmless transfer of power.”

That is one way to put it.

Justice Neil Gorsuch, concurring (p.17), and his opinion is quite long. He doesn’t mince words either:

To the extent proper respect for precedent demands, as it always has, special respect for longstanding and mainstream decisions, Chevron scores badly. It represented not a continuation of a long line of decisions but a break from them. Worse, it did not merely depart from our precedents. More nearly, Chevron defied them.

Justice Elena Kagan, dissenting, with Justice Sonia “100,000 children … in serious condition” Sotomayor and Justice Ketanji Brown Jackson (p.24):

And still there is worse, because abandoning Chevron subverts every known principle of stare decisis. … In particular, the majority’s decision today will cause a massive shock to the legal system, “cast[ing] doubt on many settled constructions” of statutes and threatening the interests of many parties who have relied on them for years. 588 U. S., at 587 (opinion of the Court).

Well, when it comes to precedent, how far back does one draw the line? Why should forty years be enough?

The “shock to the legal system” is a fair concern but “threatening the interests of many parties who have relied on them for years” seems rather convenient… I mean, we can’t threaten the interests of those who benefit from the status quo.


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