7 Key Points from SCOTUS Case That Could Dismantle the Administrative State

The United States Supreme Court heard oral arguments in two companion cases, Relentless Inc. ​v. U.S. Dept.‌ of Commerce and Loper Bright⁢ v. Raimondo on Wednesday. The bottom-line question before the ​court concerned whether‌ Congress authorized the Department of​ Commerce to charge ‌fishing businesses the cost of government-mandated observers on their rigs.

But ⁢answering that question requires the Supreme Court to first decide whether to overturn the landmark case of Chevron v. Natural Resources Defense Council,⁣ the⁢ namesake for the Chevron ⁣doctrine, which requires courts to ⁣defer to an agency’s interpretation of an ambiguous⁢ statute ​so⁣ long as ‍the agency’s interpretation is “reasonable.” That’s what ‍Wednesday’s arguments were all ⁢about — Chevron ‌ and ‍whether the Supreme​ Court should do away ‍with⁤ Chevron deference.

Here are your⁢ top takeaways from the hours-long arguments.

1. What Does⁢ Chevron Deference Mean?

A blackletter law ⁢definition of Chevron ‌deference is easy to provide. As noted above, it is a legal principle that requires ⁣courts ‌to‌ defer to an agency’s reasonable interpretation of an ambiguous ‍statute. But‌ Wednesday’s hearing ⁢showed the ​contours ⁣of the doctrine are far‍ from clear, with the justices jousting with the solicitor general, who represents the Department of​ Commerce, over the meaning of ⁤“ambiguous.”

A statute is‌ “ambiguous,” Solicitor General Elizabeth‍ Prelogar said, “when the court has exhausted‌ the⁣ tools of interpretation and hasn’t found a⁤ single right answer.” But as⁢ Justice Gorsuch noted in‍ response, just the prior‍ year, a government attorney claimed he could not define “ambiguous.”

The meaning‍ of “ambiguous” is key to the doctrine of Chevron ⁤ deference, which requires two ‌steps. ⁢At ⁤step one, a court is to ‍“employ[] traditional tools of​ statutory construction” to determine “whether Congress has directly spoken to the precise question ‌at issue.” According⁤ to Chevron, “[i]f the intent of Congress is clear, that is the end of‍ the matter,” and the⁢ court must enforce the​ clear meaning.” But if “the statute is silent⁢ or ambiguous with respect to the specific issue,” then​ the court proceeds to step two, which requires the ⁤court to ⁢defer‍ to an ⁢agency’s interpretation so long as‌ it reflects a ​“permissible construction of‌ the statute.”

So ‍defining “ambiguous” matters, several of the justices stressed, pointing to the confusion of the ‍lower courts on the question ⁣— something that would⁣ justify overturning Chevron.

2.⁣ Justice Kavanaugh Was a Star

Heading ⁣into Wednesday, court watchers knew three justices had already ⁣expressed disagreement with ​ Chevron, including Justices Clarence ⁣Thomas, Neil‍ Gorsuch, and Brett Kavanaugh. To date, Gorsuch has made some⁣ of the most resounding ⁢attacks on Chevron deference. And ‌while ‍Gorsuch landed some blows during oral argument, it ⁢was Kavanaugh who seemed to⁤ throw haymaker after haymaker.

Kavanaugh returned to ground zero — the Chevron decision — and pushed the solicitor ⁢general on what he saw ​as “an internal inconsistency in Chevron itself.”

“It related to footnote 9,” he explained. That⁣ footnote provides that “the judiciary is the final authority on⁤ issues of statutory construction and‌ must reject administrative ⁣constructions⁤ which are contrary⁢ to clear congressional intent.” Accordingly, the ‍ Chevron court continued, “[i]f a court, employing traditional tools ‌of⁤ statutory ‌construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and ​must be given effect.”

Referencing that footnote, Kavanaugh continued, “if you⁣ use all the traditional tools of ⁢statutory interpretation, you’ll get an answer,” and therefore, there is no step two and no deference. And we⁣ know you get an ‍answer, the Trump appointee stressed, “because, in cases where we don’t have an agency involved and we use those same traditional tools, we get an answer.”

Kavanaugh reiterated that point several ‍times throughout the⁣ argument, namely ​that⁢ courts interpret ⁣statutes regularly, both ambiguous and⁢ unambiguous ones, implying‍ that if judges⁢ did the tough work of statutory interpretation, there would be no step two deference required.

3. Stakes Are⁢ Enormous

Another notable theme from Wednesday was the effect of reversing Chevron.

Soon after arguments in⁤ Relentless began, Justice Elena Kagan monopolized the questioning by peppering the fishing company’s attorney with hypotheticals. ⁤What was most striking, though, were‍ not the difficult ⁢scenarios posed, but her assertion that “the court is very rarely‌ in the situation ‍in which you’re talking where it thinks the law means‍ X ‌and instead it says Y,”‍ because of deference under Chevron. “If it thinks it means X, under Chevron, as we’ve⁣ understood it and ​made clear and ‍reigned it in a little bit ⁢over these last few years, it’s⁢ supposed to say X,”⁢ Kagan continued. Chevron ⁣ really only‍ applies, the Obama appointee ‍suggested, when ⁢the “law runs out” and ​“there’s a genuine ambiguity.”

Kagan’s ‌efforts to portray Chevron as a tie-breaker‍ contrasted sharply ⁤with the sky-is-falling arguments the government presented. Overruling‍ Chevron would “shock” ​“the⁣ legal system,” the ⁣solicitor general argued⁣ in⁣ her opening comments to the‍ court. ‍Yet later in her argument, she too ⁤seemingly acknowledged ⁣that ⁣many of the cases are resolved at the first step of⁣ Chevron, meaning⁣ deference is not even required. Under these circumstances, ⁣it is difficult to take seriously the worst-case-scenario prognoses presented by Chevron’s champions.

4. Congress Needs to Do⁢ Its Damn Job

Another common theme pushed, especially‍ by ⁢Kagan, concerned ⁢the question of “who decides?” If there ⁢is an ⁢ambiguity, ‍Kagan posed several⁣ times, do ⁤we want the agency or the courts ⁤to make ⁤the policy​ decision?

The⁣ correct answer, however, is neither: Congress should make policy decisions‌ and draft statutes that ‌provide clarity on the law. ‍When Congress delegates authority ⁤to administrative agencies, such authority should similarly be clear.

5. Stare Decisis

The prudential principle of stare decisis also featured heavily ⁢in oral arguments, with the ⁣government arguing it ⁤cuts⁣ against overturning the ‍ Chevron doctrine. ⁢Businesses need⁤ certainty, the solicitor‍ general argued, and overturning Chevron ⁤would destroy⁢ the predictability of the law.

On​ the contrary, the fishing businesses’ attorneys stressed, what⁣ creates ⁢uncertainty is Chevron deference, which allows for⁤ each new administration to reverse prior regulations. Several justices seemed to ⁣share that viewpoint as well. Further, as several of the justices noted, the unworkability of a legal rule can justify ⁣its reversal, notwithstanding​ stare decisis — ⁣and⁢ several of the exchanges on Wednesday showed Chevron deference, in its current iteration, is ⁢unworkable.

6. Oh, the Humility!

Another key exchange originated⁣ when Kagan pushed ⁢Paul Clement,⁢ attorney ‌for the ​fishermen in Loper Bright, on humility.

Chevron is⁣ a doctrine of humility, Kagan ⁣began, noting that in that⁣ doctrine the court ​“recognize[s] that there are some places where congressional direction has run out, and we think Congress ⁤would‍ have‍ wanted the agency to do something rather than the courts.”

“We accept ⁣that because that’s the best reading of Congress and also because we know in our heart of‍ hearts that Congress — ⁢that agencies know things that courts do not,” she continued.

On‌ top of that, Kagan noted ⁣that overturning Chevron conflicted ⁤with ⁤the principle of ⁣ stare decisis — ​another doctrine ‍of humility — which, as she put it, ​says‌ “we don’t‍ willy-nilly ⁤reverse things unless there’s⁢ a special justification.” Then came ⁣her talking point: “And you’re saying blow up one doctrine of humility, blow up another ⁤doctrine of ‍humility,‍ and then expect anybody to​ think ⁣that the courts ‌are acting like‍ courts.”

Kagan’s comments suggest⁣ she ‌sought to sell Chevron to her fellow justices based on concerns over institutional integrity, while implying a vote to overturn that landmark case ⁣could only come from​ hubris.

Gorsuch, ⁢who filled the vacancy‌ on the court left by Justice Antonin Scalia’s⁢ death and ​was having none ⁣of ⁢Kagan’s argument, called ⁣on his predecessor’s name in retort: “One ⁢lesson of humility is [to] admit when you’re wrong. Justice Scalia, who took Chevron, which nobody understood to include this ⁢two-step move as originally written, turned it into​ what we now know,‍ and late in life, he came to regret that decision.”

7. Predictions

From oral​ argument, Gorsuch and ⁤Kavanaugh seem definite⁤ votes for reversing Chevron deference. ‍Thomas, given his past​ writings, seems a likely vote for reversal. In one exchange, ⁣Justice ⁣Samuel⁢ Alito seemed to ‍mirror much ⁢of Kavanaugh’s thinking, namely that the courts already interpret statutes in other areas, and can do so here⁢ too, without needing to​ defer to​ agencies.

Both⁣ Justices Roberts and‍ Barrett were more‍ coy in their⁤ questioning, creating⁣ uncertainty about their positions. ⁢Conversely Kagan, Sotomayor, and Jackson all​ favored ‌the Chevron framework.

Bottom line: There is no sure-fire forecast of the⁤ outcome. But something ⁢Gorsuch said might provide the best insight into the likely result.

During one exchange, the solicitor​ general suggested that⁢ the court merely reiterate to the lower⁤ courts the importance⁤ of ⁢undertaking a robust step-one inquiry. Gorsuch pointedly protested that the court had⁢ already on multiple occasions⁤ reminded the lower courts of their ⁣responsibility under Chevron to⁢ conduct an ⁤extensive analysis of the statute to resolve the⁤ question​ prior to⁢ deferring to the agencies. What good is‌ another reminder likely to ‍do?

Right there ‍could be⁢ the reason two undecided⁣ justices join to form a majority to ⁤overturn Chevron — it is just ⁣not ⁢workable because the lower courts⁢ won’t do the work required.