Bloomberg Law
May 3, 2023, 5:50 PMUpdated: May 4, 2023, 2:11 PM

Chevron’s End Unlikely as Justices Weigh Agency Power (Correct)

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson
Jennifer Hijazi
Jennifer Hijazi

A landmark precedent on the interplay between executive agencies, courts, and Congress is unlikely to fall despite the US Supreme Court’s decision to take up a case asking the justices to do just that, legal scholars say.

Four family-owned and -operated fisheries say the court’s 1984 ruling in Chevron v. Natl Resources Defense Council demanding deference to an agency’s interpretation of an ambiguous statute has allowed bureaucrats to amass massive power. They say it’s time for the so-called Chevron doctrine to go.

Administrative law experts don’t expect the justices to overturn Chevron entirely, pointing to previous cases where the court has refused to do so.

“Rather than taking on Chevron directly, you’ve seen the court narrow and whittle away at it,” said Michael Morley, a law professor at Florida State University.

Instead, it seems more likely that the court will “substantially whittle away at it, but not outright overturn it,” said George Washington University law professor Emily Hammond.

Government Interplay

Chevron was intended to carry out Congress’ intent, while at the same time allowing federal agencies with the most expertise the ability to fill in any gaps, Hammond said.

There was a hope among some justices that it would rein in courts overstepping their roles and inserting their own policy preferences, they said.

To balance the interaction among the three branches of government, Chevron instructs courts to review agency regulations in two steps.

First, a court asks whether the statutory language that Congress used was clear enough to decide the dispute. If the language is ambiguous, courts must defer to an agency’s interpretation, so long as it is reasonable.

Chevron’s Tombstone

In subsequent decades, several justices, particularly conservative ones, have been critical of Chevron and the way it has evolved. Critics have argued that lower courts’ aggressive use of the doctrine has abdicated the judiciary’s role in saying what the law is and encourages administrative overreach.

In a 2022 dissent from the high court’s decision not to hear a case, Justice Neil Gorsuch said an “aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely upon it.”

“At this late hour, the whole project deserves a tombstone no one can miss,” Gorsuch said.

But the court has stopped short of ousting the doctrine entirely.

Ryan Mulvey of the Cause of Action Institute is part of the team that brought the challenge that the justices agreed May 1 to take up in Loper Bright Enterprises v. Raimondo. He agreed that there have been several recent cases where the justices have side-stepped the issue, even where the lower courts resolved the case on those grounds.

Just last term in American Health Association v. Becerra, the justices decided an apparent Chevron case without even citing the ruling. It did so by saying the law at issue wasn’t ambiguous, and so no deference was necessary to resolve the dispute.

Hammond said that the current court has increasingly used the “major questions doctrine” to bypass Chevron issues. Under that doctrine, courts presume that Congress didn’t intend to delegate to agencies the authority to enact policies with major political or economic impacts unless it said so explicitly.

Again, a decision from last term is illustrative.

In West Virginia v. EPA, the court said congressional silence didn’t give the agency the authority to enact costly regulations aimed at addressing climate change.

Clarify, Not Overrule

The justices could take a similar approach in Loper Bright—that is, finding ways to narrow the use of Chevron while keeping it on the books.

In an alternative to outright overruling the doctrine, the fisheries have asked the justices to “at least clarify” that statutory silence isn’t enough to make a law ambiguous.

“Even if its not overturned, some clarification would be helpful,” Mulvey said. In particular, his clients are asking the justices to make clear that congressional silence on an agency’s authority doesn’t automatically make the statute ambiguous.

Here, the fisheries are challenging the extent to which agency rules can require them to pay the salaries of federal regulators.

Case Western Reserve University law professor Jonathan Adler said this court has made clear that it believes the lower courts are often too quick to assume that agencies have the powers they claim.

So, there seems to be “broad agreement among conservative justices that there is a need to clarify” Chevron, if not overrule it, Mulvey said.

Fog of Uncertainty

A ruling along those lines would still have a broad impact.

Along with West Virginia v. EPA, it would make clear that when agencies want to do things that they haven’t been doing before, or that they don’t clearly have the authority to do, they need to go to Congress, Adler said.

A narrow Chevron ruling “puts the squeeze on their ability to make up for Congress’ failure to update statutes and to keep things current,” he said. But “it doesn’t do much of anything to agencies plugging along and doing the normal things that agencies do,” he said.

While “less catastrophic,” there’s still going to be a lot of uncertainty, said James Goodwin of the Center for Progressive Reform.

Lower courts are going to have to resolve these matters on a case-by-case basis, Goodwin said.

“And under that fog of uncertainty, there’s going to be a lot of confusion,” and “a lot of inconsistent results,” he said.

There are going to be more cases where judges are “making decisions that align with their policy preferences rather than what they ought to be doing as neutral judges,” Goodwin said. “In other words, it’s going to invite and encourage a lot more judicial activism over the next few years.”

Loper Bright Enterprises v. Raimondo, U.S., No. 22-451

(Corrects pronoun in seventh paragraph.)

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at; Jennifer Hijazi in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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