A ‘Chevron’ Death Would Open New Paths for Business Strategy

After listening—twice—to the lengthy oral arguments in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, I began debating the issue of agency deference with colleagues at Porter Wright.

It turns out that deciding whether to allow unelected agency experts or unelected federal judges to resolve ambiguities in statutes is trickier than it might seem.

Many court-watchers are convinced that the US Supreme Court will consign what’s known as Chevron deference to the dustbin of history. I have been reflecting on what that might mean to my business clients so that I can improve my own advocacy on their behalf, and concluded that it may not mean as much as some may think.

In Ohio, where I live and practice, the state Supreme Court already expressly rejected Chevron deference and its Auer counterpart. So Ohio judges need not defer to an agency’s interpretation of an ambiguous statute, nor to an agency’s interpretation of its own administrative rules.

The sky hasn’t yet fallen in Columbus, and many Ohioans might consider the Buckeyes’ recent win-loss record against Michigan in football to present a more existential crisis than the abandonment of required judicial deference to agencies.

If Chevron disappears from federal court, too, I prefer to look on the bright side. Here are some opportunities and strategies that I plan to revisit when the high court issues its opinion and the contours of the new regulatory landscape are more defined.

Pre-Litigation Opportunities

Abandoning judicial deference to agency interpretations may present opportunities for regulated clients to engage meaningfully with legislators on the front end, to identify and address gaps and ambiguities in bills before they become laws.

Perhaps legislators will be more willing to preemptively address such matters if they realize that failing to do so may leave those open issues in the lap of a judge to solve—a judge who hasn’t heard the detailed policy arguments in committee hearings and likely wants to avoid the perception of legislating from the bench.

To the extent that clients have been on the wrong side of judicial decisions applying Chevron, the justices’ forthcoming opinion may signal new pathways to achieve a different result without waiting for litigation.

For example, abandoning Chevron may present chances for regulated clients to take positions in pre-enforcement settlement negotiations or informal conferences with agency staff that may not have been realistic or persuasive under that case—a case that elevates an agency’s interpretation of an ambiguous statute over other, potentially reasonable interpretations.

Litigation Strategies

Congress can’t realistically fill every gap or predict every ambiguity in legislation. Justice Elena Kagan made this point on Jan. 17 in her questions about how Congress can possibly do so when it seeks to regulate something as complex as artificial intelligence.

When the inevitable lawsuits are filed, an end to Chevron deference may present expanded opportunities to brief and argue canons of statutory interpretation that some counsel may not have thought about since law school.

In “Reading Law,” authors Bryan A. Garner and former Justice Antonin Scalia systematically address more than 50 different canons—the tools that lawyers will need to more effectively brief and argue congressional intent in a world without automatic deference to administrative agencies.

In addition to brushing up on underutilized canons, counsel may also want to bone up on the Administrative Procedure Act. As the fishermen in Loper Bright noted in their brief, it is remarkable that the Chevron decision—one ostensibly about the proper procedures for assessing agencies’ interpretations of their governing statutes—doesn’t even cite the APA. If Chevron goes away, we may see a renewed focus in litigation on what the APA says and means when it comes to judicial review of agency action.

If Chevron is destined for doom or curtailment, it will be worth counsel’s time to review the court’s forthcoming opinion carefully and consider opportunities to leverage it. I plan to savor reading the justices’ opinion, no matter how the ruling unfurls.

The cases are Loper Bright Enterprises v. Raimondo, U.S., No. 22-451 and Relentless, Inc. v. Department of Commerce, U.S., No. 22-1219.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Brad Hughes is partner in Porter Wright’s litigation department and chairs the firm’s appellate practice group.

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