Posted on May 5, 2023, by Seth Jaffe
Earlier this week, the Supreme Court accepted cert. in Lopez Bright Enterprises v. Raimondo, which presents a straightforward challenge to the continuing viability of Chevron. The question presented was:
Whether 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.
It’s noteworthy that the Court did not grant cert. on the question whether, under Chevron, the agency interpretation of the relevant statute was reasonable. That makes it pretty clear that the court wants to get at the merits of Chevron itself. With Chevron in play, there are several issues to note:
- First, if you have an interest, this is the case in which to submit or join an amicus brief.
- Second, it’s worth remembering that, just 40 years ago, Chevron was not controversial. The decision was unanimous.
- Third, what’s sauce for the goose is also sauce for the gander. The Trump administration relied on Chevron to support a number of questionable efforts at statutory interpretation.
- Fourth, while Justices such as Gorsuch are clearly not friends of the administrative state, I think that the attack on Chevron is as much an attack on Congress as it is on the executive branch. It is an attempt to stop Congress from legislating general principles at a high level, while leaving the executive to fill in the details. This has been the dominant mode of legislative drafting for some time and it has very clearly been intentional on Congress’s part. Is it really the role of SCOTUS to say that Congress cannot legislate this way?
While this is not intended to be a post on the merits of Chevron, I will say this. The attack on Chevron is really an attack on modernity itself. The world has gotten much more complicated, and SCOTUS just doesn’t like that.
Time will tell regarding how SCOTUS’s efforts to return us to a simpler era work out.