The ruling, known as "Chevron deference," was supported Jan. 17 by Elizabeth B. Prelogar, the U.S. Solicitor General, representing the U.S. Department of Commerce in two similar lawsuits that call for overturning or restricting the 1984 Supreme Court ruling.
Removing Chevron deference would cause an "unwanted shock" because it would allow judges with little or no expertise in technical matters to, in effect, make public policy, she said. Overturning Chevron would cause "endless litigation" because previous instances where deference had been applied could be subject to lawsuits.
"Litigants would come out of the woodwork," said Prelogar, noting that Congress could pass a law overruling the Chevron deference — but it hasn't.
Congress doesn't always speak clearly when passing laws, necessitating the various regulatory agencies to interpret them, she said. Because all three branches of government as well as regulators have acted within the framework of Chevron deference for 40 years, eliminating it would affect their strategies and expectations, she said.
Without Chevron deference, "many judges" will interpret laws differently and "will open up wide disputes" among courts in different parts of the country, she added.
At the oral argument, Chevron deference was described as violating separation of powers in the Constitution and allowing regulators to act beyond the scope of laws they administer, said Roman V. Martinez, a partner at Latham & Watkins LLP, adding that Chevron deference deprives courts of their authority to interpret laws. Martinez represents commercial fishing companies in the case of Relentless Inc. et al vs. U.S. Department of Commerce et al.
They petitioned the Supreme Court after the First U.S. Circuit Court of Appeals, Boston, ruled in March 2023 against them in a dispute involving requirements that they pay federal observers who enforce federal fishing regulations. The petitioners told the Supreme Court the issue was bigger than just fishing.
The Relentless case is similar to another fisheries dispute, Loper Bright Enterprises et al. vs. Gina Raimondo, in her official capacity as Secretary of Commerce et al. These petitioners asked the Supreme Court to overturn a ruling by the U.S. District Court of Appeals for the District of Columbia also involving payments for federal observers and also argued that the lawsuit had greater implications beyond fishing.
The cases were argued in tandem on Jan. 17.
Much of the discussion on Jan. 17 focused on the two-step process that courts use to determine if Chevron deference applies.
If Congress delegates authority to a regulatory agency to decide an issue and the court determines the law is clear with respect to this issue, then the court must implement congressional intent.
However, if a court determines a law is silent or ambiguous on an issue before the court, then the court should defer to the agency if the court decides the interpretation of the law is reasonable.
A major challenge is defining "ambiguity," Martinez said. "You need a secret decoder ring."
Even in a "prosaic case" like the fisheries payment dispute, lower court judges "can't figure out what Chevron means," said Justice Neil Gorsuch, who has criticized Chevron deference in previous cases.
When asked by Justice Elena Kagan if removing Chevron deference means judges must decide complex issues — such as artificial intelligence — for which judges lack expertise, Martinez replied that Congress writes the laws and courts interpret them. Martinez said he opposed the idea of Congress writing a law that would codify Chevron deference because that would take away the courts' role of interpreting laws. "Ambiguities are all over the place," he said. "Courts resolve ambiguities all the time."
Martinez said there is a difference between a regulatory agency administering a law and the fisheries payment issue which was "made up."
Given the difficulties in applying Chevron deference, "we would respectfully suggest that the solution here is to recognize that the fundamental problem is Chevron itself," Martinez said. "Interpretive authority belongs to the courts."Justices' questioning produced a variety of views and opinions.
Without Chevron deference, Justice Ketanji Brown Jackson said she was concerned that judges would look at all elements of a statute, then decide they all are subject to court interpretation. "I'm worried about courts becoming uber-legislators," she said. By placing more responsibilities on them, it will take years for the courts to "sort it out," she said. "What is the agency supposed to be doing in the meantime?"
Justice Brett Kavanaugh contended that Chevron deference leads to "shocks to the system," because each time there's a new administration in the White House, regulations change. He said Chevron deference takes the power of Congress and shifts it to the executive branch.
