Notes

Relevance

A lot of regulatory framework is based on the idea that executive agencies will have some leeway in interpreting how a regulation should appear if the written statute from Congress is ambiguous. If legal action was ever brought challenging a regulation, the Court, under Chevron’s two-step analysis, was forced to give deference to the agency concerning the legality of the regulation. Now, with Chevron gone, a whole host of federal agencies can be challenged in court over statutory interpretations of their regulations, potentially leading to a lot of regulatory change.

Decision Summary

Major Points of Decision

Roberts spends the vast majority of his decision arguing that Chevron is a violation of the separation of powers, by assuming that any ambiguity in any given legislative statue is necessarily left to interpretation by an executive agency tasked with enforcing the given statue. Roberts argues it is incongruent with the construction of our three separate branches for the judiciary to give away matters of legal interpretation necessarily to executive agencies when Congress has not explicitly answered how an ambiguity should be decided.

Gorsuch writes in his opinion attacking the stare decisis defense of Chevron and details the troubled judicial history in regards to Chevron and how unworkable it was as a doctrine.

Major Points of the Dissent

Kagan, writing for the dissent, argues that the APA’s Section 706 does not explicitly grant the courts the ability to do de novo analysis of any ambiguous congressional statute, and instead argues that the legal and legislative environment at the time of the APA’s passage and leading up to Chevron pointed to an increase in Judicial deference to agency statutory interpretation. She also points out that all legislation that has passed since, has passed under the shadow of Chevron, and that overturning this decision will cause a major regulatory upset, something the court is supposed to avoid unless dire circumstances call for it.

Questions for Debates

1. Should the government, a body that already enjoys some of the strongest prosecutorial power in the United States, also be afforded deference when making legal analysis of its own regulations?
2. If Congress so desires an agency to have wide discretion in the implementation of a particular statute, why rely on Chevron when Congress can just write that into the statute?
3. If Chevron was such a massive, ground-breaking decision, why were so few Justices even involved in the Ruling, and why did no one else seem to think so at the time?
4. If the experts in a given agency are indeed so well-studied and so well-qualified to provide substantive defense for the agencies statutory construction, then shouldn’t we expect them to be able to successfully (or even easily?) argue this in front of a judge?
5. If we believe the courts are competent enough to evaluate whether the statutory construction that an agency has undertaken is “permissible” under the second step of Chevron, wouldn’t that essentially require the Courts to have some minimum level of technical understanding? If a court is competent enough to figure out if a case would survive the second step of Chevron, why would a court not be competent enough to rule on the statutory construction in question?
6. Do we want citizens of the United States to be subject to wildly different regulations, some of which may be criminal in nature, which may all qualify as “permissible interpretations” of statue, just because of changing political/bureaucratic agencies?

Commentary on Opposing Points of View

1. https://www.youtube.com/watch?v=lGBUIgLEKuY
2. contrary opinions

Notes

• Majority written by Chief Justice John Roberts
  • Reference to the 1984 Chevron case, citing the two-step rule process
    • First, after a challenge to a particular issue of executive agency enforcement, the court must see if Congress has explicitly spoken about the issue at hand.
    • Secondly, the court must then determine, if the answer is no in the first part, if the executive agency’s interpretation of Congress’s order is permissible based on the legislated statutes.
  • Roberts claims that the court should be in charge of reading explicitly how a statute is intended by constructing that contention solely on their own, without any deference to executive implementation or interpretation.
  • “In the business of statutory interpretation, if it is not the best, it is not permissible.”
  • Roberts thinks that the court is always correct in their statutory interpretation and thus is more equipped to make determinations than the executive branch is.
  • Chevron step-zero is referenced - a federal court determines whether or not Congress intended for agencies or courts to possess interpretive authority over a statue.
  • Maintains that the APA demands that the Courts continue to decide matters of law in regards to statutory construction.
• Concurring opinion of Justice Clarence Thomas
  • Thomas argues that Chevron compelled judges to abdicate their Article III judicial responsibility and expanded the executive power of agencies beyond their constitutional limits.
• Concurring opinion of Justice Neil Gorsuch
  • Gorsuch writes his decision to opine on the concept of stare decisis and why this ruling doesn’t violate that spirit.
  • Five principles were given by Edmund Burke for evaluating past judicial decisions
    • There should be numerous decisions on a given topic
    • They should all reinforce one another, and not work against each other
    • They are occurring during ordinary and constitutional times
    • They aren’t tailored to a specific case
    • And they agree generally to legal principles
  • Gorsuch speaks about three lessons regarding stare decisis
    • Past decisions may rule over particular cases, but they impart no authority in future cases to depart from the Constitution or Laws of the United States.
      • Gorsuch demonstrates that older courts overruled prior decisions at an even higher rate than they do today
    • Past decisions deserve respect as embodying the considered views of prior judges.
    • Judges make decisions based on particular cases with arguments brought forth via particular arguments from particular parties, and should be read as such, not like a statue, that is meant to apply to all persons in all situations.
  • Gorsuch talks about how Chevron violates these three lessons
    • Chevron deference violates the APA
      • Judges abdicate a large measure of their judicial responsibilities to agencies, the latter of whom may end up disagreeing with themselves or other judicial rules about their federal regulations.
      • Points out that Chevron didn’t even bother to cite the APA.
    • Chevron deference runs in opposition to the majority thoughts of lawyers, present and past.
      • Chevron violated the controlling opinion from Skidmore, and represented a departure from prior understandings of judicial control regarding statutory construction that was at ends with judicial history.
    • Chevron’s deference finds too much power in in dicta statements.
  • Gorsuch argues that the independence of Judges is built into the Constitution to shield interpretation of the law from political pressures. However, Chevron deference allows for highly politically influenced actors to determine what a valid legal interpretation of a statute might be.
  • Chevron also favors the federal government, already the most powerful litigant, and guarantees a systematic bias favoring political partisanship.
  • Chevron ensured that laws essentially changed on the whim of elected bureaucrats.
  • Chevron has made the law ambiguous and susceptible to changing administrations, rather than changing laws.
  • Gorsuch claims Chevron is unworkable for a variety of reasons.
    • The Federal government is not even sure when it applies.
    • Prior judges don’t always apply different intermediate Chevron steps.
    • “Step-zero” lol
    • Different judges (reasonable minds) apparently disagree on when different stages of Chevron even apply.
  • Gorsuch points out the variety of Chevron applications coming from even just the two cases before the Court.
  • He also reminds the reader that “reasonable” interpretations can change, effectively changing the law at the whim of the executive without a change in the law itself.
  • Gorsuch brings up a case where Brand X had to endure a rule change 4 times under 4 different administrations.
  • Regulatory capture for regulation changes can happen more easily under Chevron deference.
  • Gorsuch criticizes wielders of Chevron for including a simple statement about “permissible construction” and pretending as though that represented a significant departure from prior statutory construction and judicial review of said construction. He also notes this was a bare quorum decision, without a concurrent or dissenting opinion offered.
  • In the 19 argued cases in the following term, Chevron was cited a single time.
  • Gorsuch argued that Scalia’s goal in launching Chevron was to remedy the US of the “creative” readings the Court might have of particular federal laws, and bring some stability to the interpretations by granting deference to agencies, due to the judicial environment of “freer” legal interpretation that existed at the time. Scalia would later walk back his Chevron opinion, believing that the courts should have become more restrained, not that the legal review should have been given deference to the agencies.
  • States have refused to incorporate Chevron deference in their own systems.
  • The Court has made rulings on highly technical cases since 2016 without the need to invoke Chevron.
• Opinion of Justice Elena Kagan, with whom Justice Sonia Sotomayor and Justice Ketanji Brown Jackson join, in dissent
  • Kagan argues that ambiguity is a feature of the legislature, not a defect to be solved by the courts.
  • Kagan argues that Section 706 is silent on the standard for reviewing an agency’s statutory construction, arguing that the activity of Congress since then and at the same of the APA’s passage indicates that a deferential standard was preferable.
  • Kagan argues that Chevron was entitled to strong stare decisis protections.
  • Kagan argues that the “jolt” to the system is another good stare decisis argument, because Congress has passed laws under a Chevron two-step assumption.

Questions for me to Research

• What does the APA specifically call for?