The pending challenge to federal Chevron deference took its next step forward on January 17, 2024, when the U.S. Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimondo.
My September 5, 2023, article on this litigation addressed its background and the issues it raises. Oral argument brought several highlights:
- Is this truly a Chevron case?
- Chief Justice Roberts pressed Paul D. Clement, counsel to petitioner, on whether petitioner simply is arguing that the case could be resolved at Chevron‘s first step without going to Chevron‘s second step (and thus, without addressing the question of deference to the federal agency at issue in this case). “What you’re saying[,]” Chief Justice Roberts opined, “is that this is not a case where there can be a number of different interpretations, but I don’t think that’s coming to grips with the Chevron question.” Suspecting that the petitioner’s answer could be garnered simply through application of Chevron‘s first step—through statutory interpretation that results in an unambiguous answer on the question of congressional intent— Chief Justice Roberts proffered the same comment directly: “I guess I don’t understand how you even get to the Chevron issue, because Chevron, step one, you would give the same answer.” Mr. Clement’s answer? “Maybe you would, Your Honor, but nobody knows where step [one] ends and step two begins.”
- Justice Gorsuch made the same point to U.S. Solicitor General Elizabeth B. Prelogar, when General Prelogar went through the litany of statutes supporting the agency in the underlying fisheries issue. Apparently pleased that there is much text to rely on, Justice Gorsuch asserted that “again we’re back to the same question the Chief had [of] Mr. Clement. That’s a really good statutory interpretation argument, sounds like exactly the bread and butter of what we do every single day. And we can resolve that, right?” In a spirited exchange with General Prelogar, Justice Gorsuch added that “yes, you think you win under step one, and so does Mr. Clement. And yet, here we are.”
- Chevron‘s underlying rationale
- Justice Kagan took exception to the petitioner’s assertions that Chevron is an abdication of the judicial function. To Justice Kagan, the Chevron principle is “a recognition that in certain cases you apply all those tools [of statutory construction] and the conclusion you come up with is Congress hasn’t spoken to this issue. [. . .] [W]hat Chevron says is now there are two possible decision-makers; there’s the agency and there’s the court. And what we think is that Congress would have preferred the agency to resolve this question when congressional direction has – cannot be found . . . .” For Justice Kagan, “it’s not a question of the court couldn’t do it. It’s a question of, once congressional direction can’t be found, who does Congress want to do it?”
- Could Congress fix Chevron?
- In response to argument from the petitioner that Congress does not want Chevron, Justice Kagan retorted that “[i]f it doesn’t want Chevron, it has total control over Chevron. It can reverse Chevron tomorrow with respect to any particular statute and with respect to statutes generally, and it hasn’t. For 40 years, it has acceded to Chevron. Except in super rare cases, it has basically said this is the background rule, it gives us a stable default rule from which to write statutes, and we’ve accepted that.”
- Doctrines of humility.
- To Justice Kagan, Chevron is a “doctrine of humility.” “Chevron is a doctrine that says, you know, we recognize 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. And that’s the basis of Chevron.” Humility layers on top of humility for Justice Kagan, as “you take that doctrine of humility and you put on top of it stare decisis, another doctrine of humility . . . . 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.”
- Justice Gorsuch responded to Justice Kagan through an inquiry to Mr. Clement: “One lesson of humility is 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. What do we make of that lesson about humility?”
- Can the Court stop short of overturning Chevron?
- Solicitor General Prelogar argued that the Chevron approach complies with the Constitution inasmuch as “Congress has Article I authority to delegate gap-filling authority to agencies, and the executive has core Article II authority to fill in those gaps. [. . .] And then the Article III courts are just fulfilling their judicial role when they give effect to what Congress has done in its choice to rely on the agency in that regard.” Against this backdrop, General Prelogar recommended that the Court could simply “clarify and articulate the limits of Chevron deference without taking the drastic step of upending decades of settled precedent. And I think that’s the right thing to do here.”
- Multi-stage ambiguity:
- In what for this author was the line of the day, Justice Gorsuch quipped that if there are cases where the government thinks it wins on both steps of Chevron, it’s “because we have this ambiguous ambiguity trigger that nobody knows what it means.”
Our offices will continue to monitor into the summer, for an opinion in Raimondo and what it tells us about the future of federal agencies.
 Quotations are drawn from the Supreme Court’s transcript of oral argument, which can be found here: 22-451_o7jp.pdf (supremecourt.gov). Audio of the oral argument can be found here: supremecourt.gov/oral_arguments/audio/2023/22-451. Text that is bracketed in this article is edited and is therefore different from the original. Italicization of Chevron or of Latin terms is an addition by the author and is not in the original transcript. Ellipses are employed by the author here where not included in the original transcript, and follow Bluebook conventions.
 I have bracketed “[one]” here where the original transcript text says “two”. Thus the original: “Maybe you would, Your Honor, but nobody knows where step two ends and step two begins.”