The End Of Chevron?'What It Would Mean For Lower Courts, Federal Agencies, And Regulated Industry

• Published date: 26 January 2024
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Foley Hoag LLP
• Author: Ms Beth C. Neitzel

Top takeaways from the January 17, 2024 oral arguments in Loper Bright and Relentless:

• The Supreme Court will likely invalidate the Chevron deference doctrine or leave it toothless.
• The views of seven justices are clear; Chevron's fate will turn on the votes of Chief Justice Roberts and Justice Coney Barrett, the swing justices in this case.
• Although the decision may have little impact on the Supreme Court, which has already largely abandoned Chevron it will impact (a) lower courts' handling of challenges to agency action, (b) regulated industry, and (c) federal rulemaking.
• The outcome here'that is, whether the Court expressly overrules Chevron or leaves it nominally intact'may have the greatest effect on existing (including longstanding) federal regulations.

1. To invalidate or eviscerate? Before turning to the January 17, 2024 arguments, here's a quick recap of Chevron's two-step framework and when it applies: Courts may rely on the Chevron doctrine only when agency action carries the force of law, as in context of formal rulemaking; it does not apply to informal executive actions like guidance statements or policy manuals, which may be accorded deference only under Chevron's impotent cousin, Skidmore. When Chevron applies, courts follow a two-step process to evaluate an agency's interpretation of the statute at issue. In step one, a court must determine whether Congress clearly addressed the question at issue; if it did, then the court must apply the plain language of the statute, and no deference is warranted. If, however, the statute is silent or ambiguous with respect to the question at issue, the court proceeds to step two, where it defers to the agency's statutory interpretation so long as that interpretation is a 'reasonable' one.

The January 17, 2024 oral arguments left little doubt that the Supreme Court will either gut the Chevron doctrine or expressly overturn it'more likely the latter. Even Solicitor General Elizabeth Prelogar, recognizing that a full-throated reaffirmance isn't on the table, focused her defense of the doctrine on ways in which the Court could limit its application without jettisoning it altogether. General Prelogar urged the Court to 'issue a course correction' to lower Courts, stressing that they must employ all traditional tools of statutory interpretation to ascertain Congress's meaning before 'wav[ing] the ambiguity flag.'

Multiple justices were clearly unimpressed. Justice Gorsuch, for example, responded that the...