On June 28, 2024, the Supreme Court issued its long-awaited opinion in Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al., overturning decades of judicial deference to agencies’ regulations. The Court overturned its forty-year-old precedent, Chevron U.S.A Inc. v. Natural Defense Council, Inc., the case from which the eponymous Chevron doctrine was born. As the varying steps and iterations of Chevron deference evolved Courts afforded deference to agencies’ statutory interpretations promulgated in regulations and other guidance. However, Courts started to move away from Chevron deference in recent years and many thought it was only a matter of time until the Supreme Court used a case like Loper Bright to eliminate Chevron deference.

Before turning to the Loper Bright opinion, we should also mention that the Supreme Court issued a second significant opinion for challenges brought under the Administrative Procedure Act (“APA”). In Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Court held that the six-year statute of limitations applicable to APA actions does not begin to run until the “plaintiff has a right to bring a suit in court.” The case turned on the word “accrued,” with the agency arguing a claim is accrued when agency action becomes final. The agency’s reading would have barred the plaintiff’s suit. But the Court rejected the agency’s argument and sided with the regulated party, holding that the term “accrued” meant the moment when the plaintiff suffered an injury allowing it to sue. Corner Post is particularly important for tax regulations, many of which were promulgated more than six years ago. Those regulations may still be subject to challenge under the APA.

Turning back to Loper Bright, in that case the National Marine Fisheries Service issued a rule that occasionally resulted in herring fishers shouldering the cost of mandated observers. Some of the affected fishers challenged the rule, arguing it exceeded the scope of the enabling statute. Both the D.C. and Third Circuits applied the Chevron doctrine, deferring to the agency’s statutory interpretation and upholding the agency’s rule. Chief Justice Roberts’ majority opinion, however, decided “to leave Chevron behind,” so it vacated the circuit courts’ judgments and remanded the cases for reconsideration. 

Chief Justice Roberts, after laying out the facts of the cases before the Court, begins the majority opinion with citations to the Constitution, the Federalist Papers, and Marbury v. Madison (a seminal case concerning judicial review). Those authorities establish the judiciary’s traditional role in our system—“that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’” And that traditional role, Roberts argues, did not change when the “New Deal ushered in a ’rapid expansion of the administrative process.’” Roberts concedes that the New Deal-era Court occasionally deferred to an agency’s statutory interpretation, but he distinguishes those few instances as agency determinations “intertwined with the agency’s factfinding.” Accordingly, “[n]othing in the New Deal Era or before it thus resembled the [Chevron] deference rule.”

After following the path of traditional judicial review from the founding era to the New Deal era, the majority turns to the APA. Roberts argues that the text and history of the APA establish that it “incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions.” Although the APA requires the judiciary to exercise independent judgment, justices and judges may still seek aid and guidance from agencies’ interpretations of regulatory statutes. However, outright deference to an agency interpretation is only required when the statute in question delegates interpretive discretion to the agency; then the judge’s role becomes to ensure the agency stays within the prescribed discretion.

After traversing the path of judicial review and the APA, the next stop is Chevron. Roberts briefly outlines the Chevron two-step test and the deference it created. Then, he addresses its defiance of the APA. While the APA commands that courts “decide all relevant questions of law” and “interpret . . . statutory provisions,” Chevron meanwhile “demands that courts mechanically afford binding deference to agency interpretations.” Those directives cannot be reconciled, according to the majority. Nor can the presumption about congressional intent, that Congress intends for agencies to interpret ambiguities, reconcile Chevron with the APA. That presumption does not “approximate reality,” for several reasons: because ambiguity could result from congressional inability or inadvertence, because courts routinely address ambiguity, and because “agencies have no special competence in resolving statutory ambiguity.”

Having demonstrated the conflict between Chevron and the APA, the majority lastly addresses whether stare decisis considerations should save Chevron from being overruled. Roberts finds that the three most relevant stare decisis considerations—the quality of Chevron’s reasoning, its workability, and reliance on it—“all weigh in favor of letting Chevron go.”

Where the majority saw a “crumbling precedent[],” the dissent saw a “cornerstone of administrative law.” Justice Kagan’s dissenting opinion argues that the Chevron “rule is right” because it “reflect[s] what Congress would want.” Congress knows statutes will contain ambiguities, and it would prefer agencies to interpret those ambiguities. To illustrate that presumption, Kagan pointedly contrasts agencies with the courts at the beginning of her opinion: “Agencies have expertise in those areas; courts do not”; “[a]gencies know those programs inside-out; again, courts do not”; “[a]gencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy.” Plus, Congress authorized the agencies to administer Congress’ ambiguous statutes. Taken together, the above is a recipe for the “implicit congressional delegation of interpretive authority.”

The dissent turns to “concrete” examples, like the meaning of “distinct population segment[s]” under the Endangered Species Act, to prove the dissent’s point. Those examples demonstrate, the dissent argues, that agencies’ expertise, experience, and political responsibility place them in a better position than the courts to interpret regulatory statutes. To bolster the examples’ indication of Congress’ preference for agency interpretation, Kagan points to the “congressional reaction” to Chevron: The Chevron case has been on the books for forty years and Congress has not overturned it. After following the signs that validate Chevron, Kagan steers her opinion to the majority’s APA argument.

Kagan rejects the idea that Chevron is irreconcilable with the APA, and she paints the majority’s decision as a “grasp[] for power” that turns the majority “into the country’s administrative czar.” Judicial review on questions of law under the APA is standardless, so rather than read de novo review into the APA as the majority does, the Court should follow Chevron because the APA “neither mandates nor forbids Chevron-style deference.” The dissent also takes issues with the majority’s characterization of judicial decisions leading up to the APA. Because the Court had begun deferring to agency interpretations in some pre-APA cases, the APA’s codification of the then-existent judicial role did not preclude deference to agencies.

Lastly, the dissent excoriates the majority on the stare decisis front. Kagan refutes each of Roberts’ factors for overturning Chevron, arguing the doctrine is not the unreasonable, difficult-to-apply, un-relied-on authority the majority makes it out to be. She concludes that “given Chevron’s pervasiveness,” the decision to overturn it “is likely to produce large-scale disruption.”

Framing of the issue is where the rubber met the road in Loper Bright. The end of the majority opinion quotes the dissent, “Judges are not experts in the field,” and remarks, “That depends, of course, on what the ‘field’ is.” For the majority the field is “legal interpretation” while for the dissent it is “administering the statutes.” These disparate starting points predictably led to different destinations: one being the old, familiar Chevron that has fueled administrative law for the past forty years, and the other a new destination (or renewed according to the majority’s history) where the judiciary gives respect over deference to agency interpretations of statutes. Loper Bright and Corner Post open new routes for parties to challenge agency regulations.