WashU Expert: SCOTUS Chevron decision not as dramatic as some had feared

On June 28, the U.S. Supreme Court overruled what was known as the Chevron doctrine, which gave deference to federal agencies when interpreting statutes.

It’s demise is unlikely to result in the dramatic curtailment of agency power that some had desired and some had feared, said Ronald Levin, the William R. Orthwein Distinguished Professor of Law and noted expert on administrative law at Washington University in St. Louis.

Chevron’s abandonment was not a big surprise, Levin noted in a recent CNN opinion piece. “It had long been foreshadowed by full-throated condemnations from Justice Neil Gorsuch and Justice Clarence Thomas, along with many academic critics of the administrative agencies,” he wrote.

“When compared with those critiques, however, Chief Justice John Roberts’ majority opinion was relatively restrained,” Levin wrote. “It did not endorse the broad theories that Gorsuch and Thomas advanced in concurring opinions, such as the thesis that Chevron violated the constitutional duties of the judiciary. Moreover, Roberts acknowledged that Congress often delegates authority to an administrative agency, and when it does so, courts must uphold reasonable interpretations that agencies make within the limits of that authority.”

The real significance of the case, Loper Bright Enterprises v. Raimondo, derives from the fact that statutes are often ambiguous as to whether the question at issue in a given case does lie within the agency’s authority, Levin wrote.

“The gist of Chevron,” Levin continued, “was that, in the face of such ambiguity, a reviewing court should presume that Congress would probably prefer for the agency, not the court, to resolve the uncertainty in some reasonable fashion. As Justice Elena Kagan’s dissenting opinion in Loper Bright explained, there were straightforward reasons for making that assumption. Those reasons included the agency’s technical expertise, its experience in administering the underlying regulatory program, and its accountability to the political process.”

Loper Bright, however, has abandoned that presumption.

“The court’s decision to overrule Chevron reflects a questionable level of judicial self-confidence, as well as a skeptical attitude toward the regulatory process. That skepticism is a hallmark of the current conservative majority, but most judges in earlier generations did not share it,” he wrote.

Despite that, the significance of the decision in the case should not be overstated, Levin wrote.

“Judicial review standards have always embodied flexibility, and future judges will have a fair amount of latitude to apply judicial deference concepts as they see fit, just as judges have done in the past,” he wrote.

“To the extent that doctrinal rules do make a difference, however, the result of the court’s decision will be that judicial interpretations in regulatory cases will be less insightful, less predictable and more dependent on the preferences of lifetime-appointed federal judges who are in no way accountable to the electorate. Loper Bright may not be an occasion for alarm, but it is an occasion for regret that administrative law has lost something valuable.”