Deference or Deregulation: Mapping the End of the Chevron Doctrine

Written by ​Michael Merolla
Michael Merolla is a second-year student at the University of Pennsylvania’s College of Arts and Sciences studying political science.

On June 28, 2024, the United States Supreme Court overturned forty years of administrative precedent by issuing a landmark decision in Loper Bright Enterprises v Raimondo. The case originated from an action brought by a group of commercial fishermen – Loper Bright – against the National Marine Fisheries Services (NMFS) [1]. The fishermen found fault with the Service’s application of the Magnuson-Stevens Fishery Conservation and Management Act - passed by Congress in 1976 to combat overfishing in the seafood industry [2]. The plaintiffs were seeking redress for the NFMS’s monitoring program that required fishing companies to fund federal compliance inspectors, arguing that the agency overstepped the regulatory authority enumerated in the Magnuson-Stevens Act. In a 6-2 ruling (Justice Jackson recused herself since she ruled on the case at the D.C. Circuit), the Supreme Court ruled in favor of Loper Bright Enterprises, remanding the case back to the Appellate Court. In his majority opinion, Chief Justice Roberts states, “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” [3].

The impact of this statement goes far beyond a fishing dispute. The Loper Bright decision directly overruled the Chevron doctrine - a policy of judicial deference to administrative interpretation of ambiguous legislation. In practice, Chevron deference empowered federal regulatory agencies – such as the Environmental Protection Agency (EPA), the Federal Trade Commission (FTC), and the Securities and Exchange Commission (SEC) – to create policy based on a “rational” or “reasonable” application of their congressionally-approved powers [4]. If Congress had not provided the agency with explicit guidance for the issue at hand, courts had precedent to let the agency’s promulgation stand. The doctrine was established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), in which the Supreme Court upheld the EPA’s loose reading of the Clean Air Act that limited the legislation’s permit program [5]/

In her dissenting opinion for Lopez Bright, Justice Elena Kagan highlighted that Chevron deference had been cited around 18,000 times by federal courts [6]. The support for the doctrine is rooted in bureaucratic trust. Chevron allowed regulatory policy to be primarily determined by administrative experts, who are supposed to have superior domain knowledge in their respective fields. Kagan and other Chevron supporters argued that neither lawmakers nor judges had the time or expertise required to quickly arbitrate nuanced administrative matters. Sanne Knudsen, a professor at the University of Washington School of Law, explains this perspective: “You have incredibly technical areas of law for which the U.S. Supreme Court in Loper Bright has now paved a path for individual judges, or panels of three judges, to make decisions without having the technical expertise. [7]”

Detractors of Chevron deference argued that the precedent put too much power in the hands of unelected federal agents to determine the direction of the country. According to this position, executive agencies can only act within the specific guidelines and frameworks authorized by Congress. The Loper Bright decision embraced this rhetoric, mandating courts maintain a position of neutrality when reviewing regulatory policies. The judicial review process for administrative action is now contingent upon the Administrative Procedures Act of 1946 [8]. The legislation established the procedures for federal agencies rulemaking and adjudication practices, providing a much more limited scope for bureaucratic power. According to the Congressional Review Service, courts must use the APA to consider if the “(1) the agency action is lawful; (2) the agency adequately supported its factual findings and discretionary decisions; and (3) the agency complied with procedural requirements.”

The Loper Bright has begun to completely alter the judicial review landscape and agency rulemaking. In the three months following the decision, parties and judges invoked the new ruling in 110 cases [9]. In a post-Chevron world, commercial companies are greatly empowered to raise challenges to dissatisfactory regulatory policies. Congressional laws that outline the roles and responsibilities are often vague, affording agencies with limited explicit authority. A gridlocked Congress and an anti-regulation Trump administration does not instill much hope that these regulatory powers will be expanded or clarified. As a result, nominally neutral courts are inclined to side against the large swath of agency actions that do not conform to these weak legislative structures. Facing mounting pressure to act on climate change, healthcare, and gun safety issues, the American administrative system is the weakest it has been in four decades. For better or for worse, regulatory governance will no longer be spearheaded by bureaucrats. Politicians and judges will have the final say in shaping federal policy.

[1] Oyez: https://www.oyez.org/cases/2023/22-451
[2] NOAA Fisheries - https://www.fisheries.noaa.gov/topic/laws-policies
[3] 22-451 Loper Bright Enterprises v. Raimondo (06/28/2024): https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
[4] Legal Information Institute: https://www.reuters.com/legal/legalindustry/loper-bright-relentless-supreme-court-returns-high-stakes-question-viability-2023-11-07/
[5] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. https://www.oyez.org/cases/1983/82-1005
[6] ProPublica - https://www.propublica.org/article/supreme-court-chevron-deference-loper-bright-guns-abortion-pending-cases
[7] ProPublica - https://www.propublica.org/article/supreme-court-chevron-deference-loper-bright-guns-abortion-pending-cases
[8] Congressional Research Service - https://crsreports.congress.gov/product/pdf/LSB/LSB10558
[9] ProPublica - https://www.propublica.org/article/supreme-court-chevron-deference-loper-bright-guns-abortion-pending-cases#:~:text=Reporting%20Highlights,checks%20for%20guns%20and%20more.

Michael Merolla

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