Any Outcome Over Chevron Doctrine Will Reach Far Beyond Courts

The US Supreme Court’s Jan. 17 oral arguments for abandoning the Chevron doctrine revealed a disconnect between some justices and the real functioning of our legal system.

Chevron is complicated, but it basically means that when you sue a federal agency, and the interpretation of a statute administered by the agency is at issue, and the statute is unclear, the court will accept the agency’s interpretation if it is reasonable.

This concept has generated a constitutional debate, with challengers saying “deference” abdicates the judicial authority to say what the law is. At the Supreme Court, another troubling idea made an appearance.

Justice Neil Gorsuch framed Chevron as a problem for individuals battling the government—“the immigrant, the veteran seeking his benefits, the Social Security disability applicant.” He had not seen a case “where Chevron wound up benefitting those kinds of people.” Chevron, Gorsuch thought, “is exploited against the individual and in favor of the government.”

Ironically, just last year, the court invalidated loan forgiveness for tens of millions of student loan borrowers, because it disagreed with the Education Department’s reading of the student-loan statute. That decision didn’t mention Chevron. But the court could have deferred to the agency’s interpretation that benefited many such groups Gorsuch mentioned.

His questioning betrays a misunderstanding about how the law works. He was contemplating what would happen in a lawsuit. For most rules of law, the far more important consequences are in cases that don’t come to court.

If you have a dispute with your neighbor, you might try to work it out; you might complain to the city building department or the police; or you might sue your neighbor to demand damages or get an injunction. Before the more consequential or intensive steps, you would want to know your rights and your neighbor’s.

If loud parties are permissible until 10 pm and your neighbor’s parties were at 9 pm, a police complaint or a lawsuit won’t achieve much. On the other side, your neighbor is guided by the law about what is allowed or impermissible. We all operate in the shadow of the law. The decisions of courts, alongside other legal sources, shape our conduct with far more consequence than just the direct outcome of an individual lawsuit.

This is also true for more open-ended doctrines, and it used to be well-known to judges. For example, former Second Circuit Judge Learned Hand famously suggested negligence law compares the cost of measures to prevent a given kind of accident—such as fencing around a pool or a safety feature in a product design—against the probable cost of accidents.

Beyond compensating one injured plaintiff, negligence law warns people to take various kinds of preventive measures. If carmakers include seatbelts in their products to avoid liability, and then they win a run of cases precisely because they installed the seatbelts, that doesn’t mean negligence law favors manufacturers. Nor, if veterans lose cases against the government because of Chevron, does that show Chevron is bad for veterans. The agency might just have been operating properly within the confines of the law, including Chevron.

Every plaintiff must assess how important the dispute is for that person the odds of winning, and the cost (not just in money but also the risks from losing). For an immigrant facing deportation or a person losing disability benefits, the stakes are high, and that person has only one shot to change the outcome.

Conversely, attorney Paul Clement, arguing against Chevron, suggested government agencies can’t be very good at statutory interpretation because they lose so many Supreme Court cases. Yet many of these cases are the product of strategic choice and patient development to find the cases most likely to succeed.

In neither kind of situation—the individual immigrant or benefits claimant, or strategic Supreme Court litigation—does the trend in court cases tell us much about the vast spectrum of activity that didn’t get presented to a court.

Chevron is a rule about how to decide a certain kind of case. But to understand its impact—for good or ill—as Gorsuch contemplated, we have to think about how it affects people and agencies as they function with Chevron as a ground rule.

The basic effect is this: There always will be times when statutes are unclear. If an agency has the pertinent authority, Chevron assures it that, on those uncertain questions, it has room for maneuver within reason. And unlike if only courts could decide, Chevron allows the agency to choose an approach that serves its policy mandate as circumstances change.

Courts can’t do that kind of policy thinking. For the public, Chevron means that if the agency is within those bounds, its use of flexibility is allowed.

These assessments happen routinely at agencies on matters large and small all the time. Most aren’t blockbuster cases. But even a small matter, multiplied across the scale of the federal government, becomes important.

How does this affect the populations Gorsuch wondered about? It’s potentially beneficial. Every agency is working to fulfill its congressional mandate in the face of massive demands with massive but finite resources. A lawsuit over benefits or deportation always comes from someone who is deeply unhappy about an agency decision; that’s why the person sued in the first place.

What you don’t see is whether the agency used its room to maneuver to provide helpful outcomes to millions of other people who then had no reason to sue. US immigration and benefits policies are highly flawed, but many of those deficiencies are built into the statutes.

Restricting agencies’ flexibility for operating under ambiguous laws—and forcing them to navigate the strict interpretations of a judiciary that institutionally can’t recognize the real-world policy consequences—will make these problems worse, not better.

The cases are Loper Bright Enterprises v. Raimondo, U.S., No. 22-451, argued 1/17/24; and Relentless v. Department of Commerce, U.S., No. 22-1219, argued 1/17/24.

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

Keith Bradley is partner and co-chair of the appellate and Supreme Court practice at Squire Patton Boggs, specializing in challenges to regulatory policy.

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