If Chevron Goes, So Might Auer

• Published date: 08 August 2023
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Taft Stettinius & Hollister
• Author: Sohan Dasgupta

The U.S. Supreme Court is poised to recalibrate, and perhaps jettison, Chevron deference. Derived from a 1984 Supreme Court case ' Chevron U.S.A., Inc. v. NRDC ' that doctrine stands for the overall proposition that unless a federal agency's interpretation of a statute is unreasonable, the agency effectively gets to decide what an ambiguous statute means.¹ Federal judges must, in those circumstances, heed the determinations of executive branch bureaucrats, both in executive agencies and independent ones. Next term, the court will decide, in Loper Bright Enterprises v. Raimondo,² whether Chevron stays, goes, or is recalibrated.

What happens to Chevron will spill over into other contexts. That is because Chevron is the twin of Auer v. Robbins, a 1997 Supreme Court decision maintaining that the same deference is owed to federal agencies where the interpretation of their own regulations is concerned.³ If federal administrative agencies lose their accustomed deference as far as the meaning of "statutes" is concerned, a similar argument may ' and will ' be leveled against their claim to deference where the meaning of "regulations" is concerned.

Chevron's defenders maintain that the federal agency in question knows best what the statute it routinely applies means. Unsurprisingly, that assurance does not satisfy Chevron's detractors. Even if that is an accurate understanding of administrative practice, Chevron's critics contend, this abdication of the judicial role allows the executive to color outside its lane and to set aside any concern about democratic accountability.

To Chevron's critics, moreover, judicial review is a pillar of the U.S. Constitution, as the Supreme Court has recognized since no later than the Supreme Court's 1803 decision, Marbury v. Madison,⁴ and promised by the federal administrative state's ultimate super-statute, the Administrative Procedure Act (APA).⁵ Under this view, judicial review recognizes the federal court's duty to figure out the best meaning of a legal instrument, not just its reasonable meaning. Holders of this view sometimes also believe that the executive branch has its own tendentious view of the law, which will affect its interpretation ' a deficiency from which neutral federal judges do not ordinarily suffer. While presidential control of the political appointees in executive agencies is, of course, direct ' career civil servants, on the other hand, enjoy insulation from removal by the president, who is the head of the executive branch ' independent agency co-heads often are removable only for good cause.⁶ Many of these concepts are applicable to Auer deference as well, to the extent they govern private conduct. After all, both statutes and regulations govern what private entities and the states get to do ' or may forego doing.

In 2019, the Supreme Court had the opportunity to formally overrule Auer. The case was Kisor v. Wilkie.⁷ The court fractured badly. Four justices would have overruled Auer on its face. And five justices morphed Auer and enfeebled...