Is Overturning Chevron an Assault on Expertise?
First Published on 7/1/24 at DavidNewhoff.com
I admit to immediately jumping to a dark place upon learning about the Supreme Court ruling in Loper Bright Enterprises v. Raimondo, overturning a 40-year precedential doctrine called Chevron deference. I usually try to resist the urge to react and ascribe a Court outcome to (these days) conservative activism—at least until I’ve read the opinion—but it was a tough week. In particular, the dissents (and even Justice Barrett’s concurrence) in the Moyle case involving Idaho’s draconian anti-abortion law are enraging, but perhaps more on that some other time.
In case you somehow missed a summary in the last few days, Chevron deference emanates from the 1984 case Chevron v. Natural Resources Defense Council.The doctrine holds that when Congress is not absolutely clear in a statute related to a federal agency’s purview, then the agency’s interpretation of the law is applied. In simple terms, agencies answerable to the Executive and with the power to enforce the law are presumed to have the expertise necessary to interpret statutory ambiguity, whether that ambiguity is intentional or is merely a product of linguistic imperfections. So long as the agency’s interpretation is “reasonable,” the courts following Chevron have generally deferred accordingly.
Cutting to the chase, I believe the majority got it wrong in Loper, though not necessarily for the political purpose of fostering deregulation in favor of corporate interests. Let’s keep in mind that the case establishing the doctrine was won by Chevron, lost by the NRDC, and reversed a circuit court opinion written by Ruth Bader Ginsburg. The deference shown to the Environmental Protection Agency (EPA) at the time was seen as a political blow to environmental interests, and there was no mention of the deference doctrine, which was not yet recognized as a watershed moment in jurisprudence.
My friend Jeff Turrentine, writing for NRDC, states, “The [EPA] under then president Ronald Reagan was more inclined toward pursuing industry-friendly deregulation than decreasing pollution. Citing statutory ambiguity, Reagan’s EPA proffered its interpretation of the Clean Air Act’s directive—an interpretation that was, unsurprisingly, much more to the liking of polluters and industrial facility owners (like Chevron).”
In this light, if one is inclined to believe that the conservative justices are paving the way for Trump’s Politburo makeover of the administrative state, the most logical choice would be for the Court to leave Chevron intact. Instead, the opinion in Loper, written by Chief Justice Roberts, holds that Chevronis a legal “fiction” in conflict with the 1946 Administrative Procedure Act (APA), which “requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous…” Although the courts can and do show respect for agency and expert interpretations of statute, Roberts argues, the courts should not be bound by those readings. From the opinion:
… [Chevron] demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time. Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else—unless the prior court happened to also say that the statute is “unambiguous.” That regime is the antithesis of the time honored approach the APA prescribes. In fretting over the prospect of “allow[ing]” a judicial interpretation of a statute “to override an agency’s” in a dispute before a court, Chevron turns the statutory scheme for judicial review of agency action upside down.
Admittedly, I found the Roberts opinion compelling—or at least reasonably argued based on a limited knowledge of administrative law—until I moved onto the dissent written by Justice Kagan. “A rule of judicial humility has given way to a rule of judicial hubris,” she writes. “… the court must admit that standard legal tools will not avail to fill a statutory silence or give content to an ambiguous term.”
Justice Kagan cites several cases involving the FAA, HHS, Fish & Wildlife, and even Chevron itself to emphasize that, often, statutory interpretation can only be answered by subject-matter experts in a particular field. For example, she highlights Congress directing the FAA to alter air traffic to restore “the natural quiet” to the Grand Canyon region and asks, “How much noise is consistent with ‘the natural quiet’? And how much of the park, for how many hours a day, must be that quiet for the ‘substantial restoration’ requirement to be met?”
What struck me about the dissent’s examples is that, here, statutory interpretation is significantly intertwined with a finding of fact. In theory, courts of review are not finders of fact, but as scholar Allison Orr Larson explores in a paper published in 2012, the accessibility of Google Search likely explains the increase in the Supreme Court’s appetite for doing its own research to find “legislative facts” that make their way into opinions. In Brown v. Entertainment Merchants Association (2011),[1] for instance, Larson notes that Justices Breyer, Thomas, and Alito all conducted independent research about the harm done to minors by violent video games to support their dissents and concurrence respectively.
While it would seem desirable to have an informed judiciary, “information” is in the eye of the beholder—i.e., facts, even if accurately stated, can function as opinions when they are inaptly applied by judges. For instance, Larson cites a controversial 2007 decision to uphold a partial-birth abortion statute in which Justice Kennedy inaptly mentions that women often regret having abortions—an emotional observation irrelevant to the question before the Court. Or in recent cases in my wheelhouse, Justice Breyer’s ruling in Google v. Oracle is replete with observations about the technology market, which obscure the fact that the Court elided the threshold question of copyright infringement. Similarly, Justice Kagan, in her dissent in Warhol v. Goldsmith, begins with a lecture on art history that was both true and immaterial to the narrow legal question presented.
In context to federal agencies and Chevron, certain statutory ambiguities may only seem ambiguous to those who are not experts in the field at issue. While the majority in Loper appears to reclaim for the courts both the expertise and mandate to interpret questions of law, it overlooks the fact that, as in law, other subjects have their terms of art and arcane frameworks for context. Thus, the majority elides the complexly factual nature of the statues operating within Executive branch agencies—and therein lies the potential “death of expertise” concern stemming from this case.
The Death of Expertise?
To the extent I can claim “expertise” in any area of law and policy, it would be copyright, and notably, the Copyright Office is one that has always been afforded what is called Skidmore, rather than Chevron, deference. Because the Copyright Office is not an agency of the Executive with enforcement powers, its role to advise Congress and the courts is very much respected but not treated as determinative. On this basis, one could make an argument that where Skidmore deference is generally effective in one area of law and policy, it might work reasonably well in others. And to an extent, this is what Roberts appears to be saying when he observes that the Court was capable of interpreting the law before Chevron, and it does so in many matters that do not involve federal agencies.
Not that copyright is an acute concern like the prospect of gutting regulations that protect health, safety, and the environment. In this regard, overturning Chevron comes at an interesting—by which I mean harrowing—moment. If Trump is reelected and past is prologue, he will more brazenly appoint unqualified fawns to run federal agencies than he did last time. Given all that has transpired, he cannot even be trusted to appoint a qualified (or patriotic) Secretary of Defense, but it seems a mortal lock that most department heads and secretaries will be nose-picking acolytes whose statutory interpretations may not warrant deference of any kind.
Assuming that’s what happens, and assuming the Republic can survive, overturning Chevron may be a blessing in disguise—if we can read Loper as sincere rather than as a political broadside aimed at the administrative state. Either way, it is a sad commentary on where we are as a supposedly advanced nation. When we use medicine or medical devices, the term “FDA cleared” should mean something—not just as a consumer protection matter, but as a driver of competition. If overturning Chevron looks like a victory to the deregulation-happy, libertarian, pro-business ideologue, I’d say be careful what you wish for. Not only are your kids equally at risk from toxins in the food supply, but regulatory frameworks both rein in bad actors and support innovation in the market.[2]
In fact, from an IP perspective, patents and trademarks are intertwined with regulatory frameworks. For instance, what difference does it make if a registered mark affirms the source of certain goods, if those goods do not meet quality standards, some of which may require federal oversight? This strikes me as a timely question because Congress has yet to adequately confront the volume of counterfeit goods sold online—even by Amazon. Thus, if Loper might result in policy that undermines consumer trust at the same time the web is awash in counterfeit products and scams, this does not seem to bode well for American business at all.
I believe the dissent in Loper is right on principle, but in practice, it is not inconceivable that respect for agency interpretation is sufficient to maintain the effective operation of the administration. Notwithstanding the berserker factor of another Trump presidency, it is possible that Loper will not foster extraordinary chaos or harm to the administrative state—though many admin law attorneys may beg to differ. As Turrentine correctly notes in his article, “Chevron cuts both ways.” If you agree with the agency’s policy, you agree with the court’s deference; if you don’t agree with the agency’s policy, then the court’s deference looks either misguided or corrupt. In practice, both views are at least a little bit wrong, and it will be interesting to see where this leads. At least I hope so.
[1] The Court held that the First Amendment barred a California law restricting the sale of those games (Breyer and Thomas dissenting and Alito concurring).
[2] As cited in this post, it was Heinz’s lobbying for food safety laws that both protected his business from “competition” by food adulterers and seeded the FDA.