Loper Bright–Chevron Needs aGravestone, Not Another Exception
/p
div class=paragraph paragraph--type--text paragraph--view-mode--default paragraph--230364 fs-sm
pThe Supreme Court recently a href=https://www.supremecourt.gov/orders/courtorders/050123zor_1an2.pdfgranted certiorari in emLoper Bright Enterprises v. Raimondo/em/a, anbsp;case where commercial fishers are challenging an agency’s statutory authority to issue anbsp;regulation requiring the fishers to pay the wages of inspectors on their boats. The Question Presented (“QP”) that the Court agreed to hear includes anbsp;request to overrule ema href=https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdfChevron v. NRDC/a/em (1984). But that is not all the a href=https://www.supremecourt.gov/DocketPDF/22/22-451/246256/20221110145441811_2022-11-10%20Loper%20Bright%20Cert%20Petition%20FINAL.pdfQP/a asks. It reads in full:/p
/div
,
blockquote class=paragraph paragraph--type--blockquote paragraph--view-mode--default paragraph--230365
div class=fs-lg
pWhether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency./p
/div
/blockquote
,
div class=paragraph paragraph--type--text paragraph--view-mode--default paragraph--230366 fs-sm
pThis QP offers the Court two options: either overruling emChevron/em or continuing to narrow it. As a href=https://reason.com/volokh/2023/05/01/has-the-supreme-court-put-chevron-in-the-crosshairs/Professor Jonathan Adler explains in aemVolokh Conspiracy/em post/a, the narrowing option gives the Court anbsp;chance to revisit a href=https://www.law.cornell.edu/supct/pdf/11-1545.pdfemCity of Arlington v. FCC/em/a(2013). Although overruling emCity of Arlington/em would help constrain an agency’s ability to interpret statutory silence as an implicit delegation of power to the agency, it would not sufficiently constrain the judiciary as anbsp;whole. While the Supreme Court has become more and more hesitant to apply emChevron/em, the a href=https://www.yalejreg.com/nc/chevron-ended/lower courts have not followed the high Court’s lead/a. If history is any guide, lower courts are unlikely to accurately apply yet another exception to emChevron/em. That is why emChevron/emneeds to be simply overruled./p
pProfessor Adler posits that SCOTUS may have granted cert in emLoper Bright/em to effectively revisit a href=https://www.law.cornell.edu/supct/pdf/11-1545.pdfemCity of Arlington/em/a. Adler suggests that Chief Justice Roberts might view the case as an opportunity to rewrite his emArlington /emdissent as anbsp;majority opinion. But if the Court took that route, the result would not leave emChevron/em jurisprudence much better than it stands today. The circuits would struggle to apply anbsp;new, strengthened emCity of Arlington/em test, just as they have struggled to apply other preliminary tests asking whether emChevron /emdeference is available./p
/div
,
aside class=aside--right aside--large paragraph paragraph--type--aside paragraph--view-mode--default paragraph--230368 aside
div class=paragraph paragraph--type--pullquote paragraph--view-mode--aside-nested paragraph--230367 pullquote p-mb-last-child-0
pBefore an ambiguity is treated as anbsp;congressional delegation, anbsp;court must determine whether Congress granted the agency authority to interpret that statutory provision./p
/div
/aside
,
div class=paragraph paragraph--type--text paragraph--view-mode--default paragraph--230369 fs-sm
pAt issue in emCity of Arlington/em was the FCC’s interpretation of anbsp;statutory requirement that local and state governments process zoning applications to build telecom facilities “within anbsp;reasonable period of time.” The FCC defined “reasonable period of time” as 90nbsp;days for new antenna applications and 150nbsp;days for all other applications. The City of Arlington, along with other local governments, challenged the regulation, alleging that the FCC did not have the authority to interpret an ambiguous statutory provision defining its own jurisdiction. SCOTUS took the case to decide whether courts can apply emChevron/em deference to an agency’s determination of its own jurisdiction./p
pBy anbsp;6–3 vote, the Court held that emChevron /emdeference emdoes /emapply to jurisdictional questions, just as it applies to other areas of law. Justice Scalia’s a href=https://www.law.cornell.edu/supct/pdf/11-1545.pdfmajority opinion/a centered on the lack of anbsp;meaningful distinction between jurisdictional and non‐jurisdictional agency interpretations. Writing for the Court, Justice Scalia explained that most, if not all, agency interpretations focus on whether the agency had the statutory authority to act. “Because the question—whether framed as an incorrect application of agency authority or an assertion of authority not conferred—is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as ‘jurisdictional.’”/p
pJustice Scalia’s majority opinion then pointed out that the distinction between “jurisdictional” and “non‐jurisdictional” was really an attack on emChevron/em itself./p
/div
,
blockquote class=paragraph paragraph--type--blockquote paragraph--view-mode--default paragraph--230370
div class=fs-lg
pThe false dichotomy between “jurisdictional” and “non‐ jurisdictional” agency interpretations may be no more than anbsp;bogeyman, but it is dangerous all the same. Like the Hound of the Baskervilles, it is conjured by those with greater quarry in sight: Make no mistake—the ultimate target here is emChevron/em itself. Savvy challengers of agency action would play the “jurisdictional” card in every case./p
/div
/blockquote
,
div class=paragraph paragraph--type--text paragraph--view-mode--default paragraph--230371 fs-sm
pSetting aside the merits or constitutionality of emChevron/em, the premise of Justice Scalia’s analysis about jurisdiction was correct. Every emChevron/em question is about jurisdiction. Justice Scalia was correct that distinguishing jurisdictional from non‐jurisdictional interpretations would eviscerate emChevron/em so as to make it almost meaningless. And in classic Justice Scalia fashion, the test set out by the Court has been easy for lower courts to apply: emChevron /emapplies to every question of law./p
pChief Justice Roberts’s dissent proposed an alternative rule that would not have been nearly as simple for lower courts to apply. Compared to the emArlington /emmajority opinion, Chief Justice Roberts’s dissent was more grounded in first principles of law. Roberts would have required courts to determine if Congress delegated interpretive authority to the agency before deferring to the agency’s interpretation. Roberts explained that emChevron/em deference requires Congress to implicitly delegate authority, as noted in the a href=https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdfemChevron/em opinion itself/a. But Roberts went further, stating that each specific provision and particular question requires anbsp;delegation from Congress. Before an ambiguity is treated as anbsp;congressional delegation, anbsp;court must determine whether Congress granted the agency authority to interpret that statutory provision. Broad statutory grants might include this interpretive authority, but statutory exceptions to an agency’s authority may also apply./p
pThus, according to Roberts, emChevron/em deference did not apply to the jurisdictional question at issue, because Congress had specifically limited the agency’s authority to interpret the statute. But the test Roberts proposed would have so undermined emChevron/em as to be almost unworkable as long as emChevron /emremained good law. If Roberts’s dissent were adopted, courts would be better off applying emde novo/em review rather than deference./p
pRoberts’s test would have been anbsp;new form of emChevron/em “Step Zero” review—did the agency have the authority to interpret the statute? Several tests, collectively known as emChevron/em a href=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1053amp;context=public_law_and_legal_theoryStep Zero/a, ask whether emChevron/em deference is available at all for the agency’s interpretation. The Supreme Court has decided many cases addressing this issue, including a href=https://tile.loc.gov/storage-services/service/ll/usrep/usrep529/usrep529576/usrep529576.pdfemChristensen v. Harris County/em/aem /em(2000), a href=https://tile.loc.gov/storage-services/service/ll/usrep/usrep533/usrep533218/usrep533218.pdfemUnited States v. Mead Corporation/em/aem /em(2001), a href=https://tile.loc.gov/storage-services/service/ll/usrep/usrep535/usrep535212/usrep535212.pdfemBarnhart v. Wilson/em/aem /em(2002), a href=https://www.law.cornell.edu/supct/pdf/14-114.pdfemKing v. Burwell/em/aem /em(2015), and a href=https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdfemWest Virginia v. EPA/em/a (2022). Before proceeding to whether the statute is ambiguous, anbsp;court asks at Step Zero whether the agency’s interpretation carries the force of law (emMead/em) or concerns anbsp;question of major significance (emKing/em and emWV v. EPA/em), such that Congress did not implicitly delegate authority to the agency to interpret. Step Zero tests serve as another gatekeeper before agencies can receive deference for their interpretations./p
pThe second half of the QP in emLoper Bright/em, like the test from the Roberts dissent in emCity of Arlington/em, is also anbsp;Step Zero question. It asks whether statutory silence about powers narrowly granted elsewhere in the statute is an ambiguity indicating congressional delegation to the agency./p
pApplying the same rule proposed by Roberts’s dissent in emCity of Arlington/em could resolve emLoper Bright/em. Under the Roberts approach, cases of statutory silence are easy cases. The Magnuson‐Stevens Act’s silence as to whether fishing vessel observers are industry funded is not anbsp;delegation of authority to the agency. We know this because Congress emdid/em explicitly allow industry funding of inspections elsewhere in the statute, demonstrating that Congress knew how to make such anbsp;delegation explicitly. Congress did not intend to delegate authority to decide whether the observers at issue in emLoper Bright /emwere industry funded, as Congress decided elsewhere in the statute when industry funding was appropriate./p
pEven though this rule would be sufficient to decide the particular legal question at issue in emLoper Bright/em, the Court should not adopt this type of Step Zero approach. Although the Supreme Court has created anbsp;number of Step Zero analyses, emMead/em, emBarnhart/em, emKing v. Burling/em, etc., my research has shown that the lower courts very rarely decide cases at Step Zero. Step Zero analyses, like Roberts’s proposed test, prove unworkable for lower courts./p
pIn anbsp;a href=https://www.cato.org/sites/cato.org/files/2022-12/Loper-App.pdfrecent study/a Inbsp;conducted at the Cato Institute looking at emChevron/em in the circuit courts in 2020–21, Inbsp;reviewed 142 cases discussing emChevron/em deference. Of these, there were no cases where the agency lost because the court decided not to defer at Step Zero. Not once did an agency’s interpretation lose because the court did not defer under Step Zero. There were seven cases where the court determined it could not defer under Step Zero, but the agency’s interpretation still won, either under emde novo/em review or under emSkidmore/em persuasion review. So courts decided not to reach the emChevron/em deference two‐step in only 4.9% of potential emChevron/em cases, and the courts still upheld the agencies’ interpretation in those cases./p
pIn other words, Step Zero is not very effective at the circuit court level. It is anbsp;powerful tool at the Supreme Court—two of the ten Supreme Court cases applying emChevron/em in the past seven years resulted in the agency losing at Step Zero, and another case applied Step Zero. But while 30% of Supreme Court emChevron/em cases include anbsp;Step One analysis, circuit courts only apply Step Zero 0.49% of the time./p
pThis disparity shows why the Supreme Court should take the opportunity to overrule emChevron/em entirely and provide clear guidance to the lower courts. As Scalia foresaw in his emCity of Arlington/em majority opinion, Roberts’s approach would have lead to the end of emChevron/em if it were faithfully applied. However, it is not likely that the lower courts would have accurately and forcefully applied the Roberts approach after emCity of Arlington/em,em /emhad Roberts’s opinion been the majority. Step Zero tests may seem to have bite in theory, but they have been mostly toothless in practice. That is why emChevron/em should simply be overruled, thus giving the lower courts much needed clarity. As Justice Gorsuch recently urged, it is time for the Supreme Court to give emChevron/em a href=https://www.supremecourt.gov/opinions/22pdf/21-972_mkhn.pdf“a tombstone no one can miss.”/a/p
/div