U.S. Supreme Court Overturns Chevron – Impacts Agency Rule Challenges.

July 2, 2024

In a major new decision from the United States Supreme Court (“Supreme Court” or “Court”), the Court in Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) overruled the Chevron deference doctrine established by the Court in its well-known 1984 decision in Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984).^[1]

As outlined more fully below, in Loper Bright a group of fishing companies challenged a government regulation that required them to pay for at sea monitors. The lower courts, applying Chevron deference, ruled in favor of the Government’s position. The fishing companies appealed. The Supreme Court agreed to hear the appeal and, for the reasons outlined below, overruled Chevron. Chief Justice John Roberts authored the majority opinion for the Court, in which Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined.

signing a law contract

Ruling Summary

The main question in this case involved who has the authority to interpret a federal statute that is silent or ambiguous with respect to a specific issue? A federal court or a federal agency? Over the past 40 years, courts have been required, in many instances, to “defer” to federal agency interpretations in this situation, so long as the agency’s interpretation was deemed reasonable under the two-step “Chevron deference” analysis. Since 1984, Chevron has served as the primary basis for how courts assess agency interpretations of federal statutes (including rulemaking activity) when applicable. In fact, one source reports that the Supreme Court and lower federal courts have cited Chevron more than 18,000 times since 1984.^[2] However, over the past several years, changing judicial and political views have questioned Chevron’s continued validity.

Against this backdrop, the Supreme Court in Loper Bright has now overruled Chevron. In doing so, the Court has ruled, in part, that courts (not agencies) are ultimately responsible for interpreting statutes that are silent or ambiguous with respect to a specific issue per the Administrative Procedure Act (APA). As part of this decision, the Court has ruled that while “[c]areful attention to the judgment of the Executive Branch may help inform that inquiry, courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”^[3]Thus, this decision, in many respects, has essentially flipped the answer to the above question 180 degrees from how courts have proceeded under Chevron.

Accordingly, the Court in Loper Bright vacated the judgments of the D.C. and First Circuits which relied, in pertinent part, on Chevron and remanded (sent back) the cases to the lower courts for further proceedings consistent with the Court’s opinion. It is important to note that the Court did not address or explicitly invalidate any other Court decisions, agency regulations, or existing agency policies as part of this ruling. On this note, for those interested in the Medicare secondary payer aspect, it remains to be seen whether this case will be used to challenge existing or future CMS rulemaking and policies.

Going forward, as Chevron fades from view, the Court’s decision in Loper Bright creates the new legal standard courts must follow in addressing questions and disputes regarding agency interpretation of federal statutes, with the courts now taking a more determinative, and dispositive, role in resolving these types of disputes. As with many new Court rulings, we will need to see: (1) how this decision will play out, both legally and practically, in future disputes brought before the courts;(2) exactly how the Loper Bright landscape will develop; and (3) what impact this will have on agency interpretations and actions going forward. In addition, it will also be interesting to see how, if at all, this decision may impact Congress, either in terms of possible efforts to codify Chevron, or with respect to statutory construction and delegation going forward.

In the interim, the below provides a general summary of the factual background related to this decision, followed by more in-depth analysis for those interested, as follows:

Case Summary

The case before the Supreme Court involved appeals from the United States D.C. Circuit Court of Appeals in Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359 (D.C. Court of Appeals, 2022) and United States First Circuit Court of Appeals in Relentless, Inc. v. Department of Commerce, 62 F.4^th 621(1^st Cir. 2023). The main issue in this case was whether the Court should overrule or modify the Chevron deference doctrine established in Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984).^[4]

Briefly, under Chevron, courts use a two-step test to determine whether to apply “deference” to agency statutory interpretations, in certain instances. In general, this two-step analysis works as follows: Under Chevron step-one, the court first determines if Congress has “directly spoken to the precise question at issue.”^[5] If so, then the courts (and agencies) must follow Congress’s intent.^[6] If, on the other hand, the statute is silent or ambiguous with respect to a specific issue, under Chevron step-two the court then determines whether the agency’s interpretation of that statute is reasonable. If so, the court will defer to the agency’s interpretation, even if their own interpretation would be different.^[7] Chevron has served as the primary basis for how the federal courts assess the validity of agency statutory interpretations (including rulemaking) for the past 40 years.

Regarding the facts, in both Loper Bright and Relentless, a group of commercial herring fishing companies, in separate actions, sued the U.S. Secretary of Commerce, the National Marine Fisheries Service (“NMFS”), and several other government entities, challenging, in main part, a final rule (regulation) issued by the NMFS based on their interpretation of the Magnuson-Stevens Fishery Conversation and Management Act (“Magnuson Act”). Very generally, this final rule required the fishing companies, in certain instances, to pay for at-sea monitors (“industry funded” monitoring) to help the government regulate certain aspects of the fishing industry. While the Magnuson Act contained provisions requiring industry-funded monitors in some quarters of the fishing industry, the fishing companies contended the statute was silent in regard to how it applied in their situation and that the NMFS exceeded its authority in establishing its rule requiring them to pay for at-sea monitors.

At the lower court level, the U.S. District Court for the District Court of Columbia in Loper Bright, ruled in part, that the NMFS’s interpretation of the Magnuson Act was reasonable and upheld the NMFS’s final rule requiring industry-funded monitoring. This decision was then affirmed by the U.S. Circuit Court of Appeals for the District of Columbia Circuit, Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359 (D.C. Court of Appeals, 2022). Similarly, in Relentless, Inc., the U.S. District Court for Rhode Island also found, in part, the NMFS’s interpretation was reasonable. The U.S. First Circuit of Appeals affirmed in Relentless, Inc. v. Department of Commerce, 62 F.4^th 621 (1^st Cir. 2023).

The fishing companies appealed to the U.S. Supreme Court arguing, in main part, that the Court should overrule, or modify, the Court’s prior decision in Chevron. The court agreed to hear these cases on appeal.

On appeal, the Supreme Court overruled Chevron. In doing so, the Court ruled, in part, courts (not agencies) are ultimately responsible for interpreting statutes that are silent or ambiguous with respect to a specific issue per the Administrative Procedure Act (APA). As part of this decision, the Court ruled that while “[c]areful attention to the judgment of the Executive Branch may help inform that inquiry, courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”^[8]

Based on this ruling, the Court vacated the judgments of the D.C. and First Circuits which relied on Chevron and remanded (sent back) the cases to the lower courts for further proceedings consistent with the Court’s opinion.

For those interested in a more in-depth overview of the Supreme Court’s ruling, the author continues breaking down this case as follows:

Government agency enacts regulations requiring industry-funded sea monitors

The Magnuson-Stevens Fishery Conversation and Management Act of 1976 (“Magnuson Act”), codified at 16 U.S.C. §§ 1801–1884, was the statute at the center of this dispute. In general, this statute was enacted into law by Congress to help “conserve and manage the fishery resources … of the United States.”^[9]The Magnuson Act governs, by way of two examples, such activities as annual catch limits and use of specific fishing gear and equipment.^[10]The National Marine Fisheries Service (NMFS) administers the Magnuson Act under a delegation from the Secretary of Commerce.^[11]The Magnuson Act established eight regional fishery management councils comprised from coastal states, fishery stakeholders, and the NMFS.^[12]The councils create fishery management plans which the NMFS approves and promulgates as final regulations.^[13]

Key to the disputes in Loper Bright and Relentless involved certain provisions in the Magnuson Act that require, in part, “observers” to be carried on board domestic vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.”^[14] In this regard, the Magnuson Act specifies three groups which must cover the costs of these observers which did not specifically include the Atlantic herring fisheries in the cases before the Court.^[15] At one point, the NMFS fully funded the observers for the Atlantic herring fishing industry under the New England Fishery Management Council (“New England Council”)^[16]

In 2013, however, the New England Council proposed a plan to require fishing companies to pay for the observers (industry-funded monitoring) if federal funds were unavailable. The NMFS then processed this proposal through the rulemaking process with the final rule at issue released on February 7, 2020.^[17] The final rule, in pertinent part, requires fishing companies to fund, in certain instances and at their own expense, the government’s monitoring program.^[18] The final rule, in general, covers 50% of herring trips, with this 50% coverage target met through a combination of limited Service-funded, with remaining 50% funded by the fishing companies.^[19]The NMFS estimated industry costs to the herring fishery at $710 per day, which it estimated in the aggregate could reduce annual returns by “’approximately 20 percent.’”^[20]

Fishing companies challenge the regulations – lower courts rule for the Government

Petitioners Loper Bright Enterprises (with other fishing companies) filed an action in the D.C. District Court challenging the NMFS’s regulation requiring industry-funded monitoring, arguing, in part, that the Magnuson Act did not authorize the NMFS to require them to pay for the monitors.^[21] The Government countered, in part, that the Magnuson Act unambiguously authorized it to implement industry-funded monitoring requirements.^[22]The District Court granted summary judgment in favor of the Government finding, in part, that the Magnuson Act authorized the rule, and noted that even if there were ambiguities in the statutory text, deference to the NMFS’s regulations would be warranted under Chevron.^[23]The fishing companies appealed. On appeal, the U.S. Court of Appeals, District of Columbia Circuit affirmed the district court’s ruling finding, in general, that the NMFS’s rule requiring industry funded at-sea monitors was a reasonable interpretation of applicable provisions of the Act and, thus, was owed judicial deference under Chevron. Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359, 369 (D.C. Court of Appeals, 2022).^[24]

In a similar action, Petitioners Relentless, Inc. (with other fishing companies) filed suit in the United States District Court for Rhode Island challenging the NMFS’s regulations in the United States District Court for Rhode Island arguing, in part, that the NMFS’s rule was unauthorized under the Magnuson Act.^[25] The District Court granted summary judgment for the Government finding, in general, that the Magnuson Act is ambiguous on the question of industry-paid monitors and that, per Chevron, the NMFS’s rule was entitled to deference.^[26]The fishing companies appealed. On appeal, the U.S. First Circuit Court of Appeals affirmed the district court’s ruling, finding that the NMFS did not exceed its statutory authority under the Magnuson Act on various grounds. Relentless, Inc. v. Department of Commerce, 62 F.4^th 621, 633-34 (1^st Cir. 2023).^[27]

The petitioners than appealed to the Supreme Court arguing, in part, that the Court should overrule, or modify, the Chevron deference doctrine. The Court agreed to hear the appeals, granting certiorari in Loper Bright at 143 S.Ct. 2429 (May 1, 2023) and Relentless at 144 S.Ct. 345 (Oct. 13, 2023). The Court consolidated both cases for hearing.

Supreme Court overrules Chevron

The Supreme Court, in a 6 to 3 ruling, overruled its prior decision in Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984), and the Chevron deference doctrine articulated in that prior decision.

Chief Justice John Roberts authored the majority opinion for the Court, in which Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined. Justices Thomas and Gorsuch filed concurring opinions. Justices Sonia Sotomayor and Elena Kagan filed dissenting opinions, while Justice Ketanji Brown Jackson filed a dissent only in the Relentless action, as she had recused herself in the Loper Bright case as she had previously served on the panel that decided that case at the D.C. Circuit.

In overruling Chevron, the Court stated, in part, as follows:

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous. Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024), at *22. (author’s emphasis).

The Court’s ruling and rationale in overruling Chevron is broken down as follows:

Courts (not agencies) are required to interpret ambiguous statutes under the Administrative Procedure Act (APA)

In overruling Chevron, the court ruled, in main part, that the Administrative Procedure Act (APA), codified at 5 U.S.C. § 551 et seq., requires courts to utilize their independent judgment to determine whether an agency has acted within its statutory authority, and, per the APA, it is the courts (and not federal agencies) responsible for interpreting statutory ambiguities.

Regarding the APA, the Court noted, in part, that “[a]s relevant here, Section 706 directs that ‘[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action’ (citation omitted). It further requires courts to ‘hold unlawful and set aside agency action, findings, and conclusions found to be ... not in accordance with law.’”^[28]

On this point, the Court noted, in part, that “[t]he APA thus codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action, § 706 [court’s emphasis] —even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential. See § 706(2)(A) (agency action to be set aside if “arbitrary, capricious, [or] an abuse of discretion”); § 706(2)(E) (agency factfinding in formal proceedings to be set aside if ‘unsupported by substantial evidence’).”^[29] In addition, the Court noted that the history behind the APA’s enactment in 1946 further supported the conclusion that questions of law are for courts to decide, not federal agencies.^[30]

The Court also found, in part, that “[t]he APA, in short, incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions. In exercising such judgment, though, courts may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes. Such interpretations ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ consistent with the APA”^[31] and that “interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.”^[32]

Further, the Court recognized that “[i]n a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes.”^[33]In this instance, the Court noted that “’when the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, ’fix[ing] the boundaries of [the] delegated authority’^[34]and ensuring the agency has engaged in ‘reasoned decision making’ within those boundaries.^[35] By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.” ^[36]

From a related angle, the Court also noted other authority in further support of its view that it is the role of courts (not agencies) to decide questions of law. Very generally, in this regard, the Court noted that Article III of the Constitution assigns the federal judiciary the responsibility to decide “’Cases and Controversies’”^[37]noting further that the Framers envisioned that the final “interpretation of laws’ would be “’the proper and peculiar province of the courts.’”^[38] Expanding on this point, it was noted that the Court “had embraced the Framers’ understanding of the judicial function early on” referencing the “fundamental decision” of Marbury v. Madison (decided in 1803) noting that Chief Justice Marshall in that case stated that “’it was emphatically the province of and duty of the judicial department to say what the law is.”’^[39] The Court then cited several other decisions throughout the 19^th century standing for this principle.^[40] Fast forwarding to the 20^th century, and pre-Chevron, the Court cited prior decisions in the New Deal Era (and pre-APA) reflecting, very generally, that while the Court extended deference to agency findings of fact, it “did not extend similar deference to agency resolutions of questions of law. ”^[41] (Court’s emphasis) Rather, it was noted that “[the Court] instead made clear repeatedly that ‘[t]he interpretation of the meaning of statutes as applied to justiciable controversies’ was ‘exclusively a judicial function.’”^[42]

Chevron cannot be reconciled with the APA

Finding the APA applicable, the Court then noted that that the “deference that Chevron requires of courts reviewing agency action cannot be squared with the APA”^[43]and that “[n]either Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA.”^[44]The Court stated that “[t]he ‘law of deference’ that this Court has built on the foundation laid in Chevron has instead been “’[h]eedless of the original design of the APA.’”^[45]

As part of its analysis, the Court noted that “Chevron defies the command of the APA that ‘the reviewing court’ – not the agency whose action it reviews – is to ‘decide all relevant questions of law’ and ‘interpret statutory provisions.’” Loper Bright Enterprises, 2024 WL 3208360 (U.S. June 28, 2024), at *15, citing 5 U.S.C. § 706 (court’s emphasis). Expanding on these points, the Court noted that Chevron “requires a court to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment as required by the APA (citation omitted). Chevron insists on more than the ‘respect historically given to Executive Branch interpretations; it demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time … and even when a pre-existing judicial precedent holds that an ambiguous statute means something else (citation omitted). That regime is the antithesis of the time honored approach the APA prescribes.” Loper Bright Enterprises, 2024 WL 3208360 (U.S. June 28, 2024), at *15 (Court’s emphasis).

Court rejects arguments that statutory ambiguities delegate authority to agencies

Further, the Court rejected the Government and the dissent’s respective arguments that statutory ambiguities are implicit delegations to agencies.^[46] The Court noted that “[p]resumptions have their place in statutory interpretation but only to the extent that they approximate reality. Chevron’s presumption does not, because ‘[a]n ambiguity is simply not a delegation of law-interpreting power. Chevron confuses the two.’”^[47] On this point, the Court noted that, as referenced in Chevron, that “ambiguities may result from an inability on the part of Congress to squarely answer the question at hand, or from a failure to even ‘consider the question’ with the requisite precision … In neither case does an ambiguity necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. And many or perhaps most statutory ambiguities may be unintentional.”^[48]Accordingly, the Court noted that “[p]erhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”^[49]

An agency’s purported expertise and need for uniformity does not justify retaining Chevron

In the support of retaining Chevron, the Government argued, in part, that Congress generally intends for agencies to resolve statutory ambiguities because they purportedly have subject matter expertise on technical matters and that deferring to agencies promotes uniform construction of federal law.^[50]

As for subject matter expertise, the Court, in general, questioned that Congress intended to take the “power to authoritatively interpret [a] statute from the courts and give[] it to the agency.”^[51] Rather, the Court stated that “Congress expects courts to handle technical statutory questions,^”[52]noting that “[m]any statutory cases’ call upon ‘courts [to] interpret the mass of technical detail that is the ordinary diet of law’ and courts did so without issue in agency cases before Chevron.”^[53]On this latter point, the Court noted that courts “do not decide such cases blindly” and that while an agency’s interpretation cannot bind a court, it may be “‘especially informative’^[54] and that [s]uch expertise has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’”^[55] According to the Court, the better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute.^[56]

From another angle, the Court found that “a desire for the uniform construction of federal law [does not] justify Chevron.”^[57] Here, the Court stated that given the “inconsistencies in how judges apply Chevron … it is unclear how much the doctrine as a whole (as opposed to its highly deferential second step) actually promotes such uniformity.”^[58]Further, the Court viewed, as “especially mistaken,” the view that interpretation of ambiguous statutory provisions amounts to policy making suite for political actors rather than the courts, finding that this position “rests on a profound misconception of the judicial role.”^[59] On this point, the Court noted, in part, that while it is “reasonable to assume that Congress intends to leave policy making to political actors … resolution of statutory ambiguities involves legal interpretation.”^[60] The Court further noted that “[b]y forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron does not prevent judges from making policy. It prevents them from judging.”^[61]

Stare Decisis does not support upholding Chevron –(but applies to prior court decisions that relied on Chevron)

The Court also rejected the argument that “stare decisis, the doctrine governing judicial adherence to precedent,” required the Court to continue to follow Chevron.^[62] The Court noted that under the stare decisis analysis considerations “most relevant here – ‘the quality of the [precedent’s] reasoning, the workability of the rule it established … and reliance on the decision’ all weigh in favor of letting Chevron go.”^[63]

In general, as part of the Court’s ruling on this ground, it noted that Chevron was “fundamentally misguided” and “[d]espite reshaping judicial review of agency action, neither it nor any case of ours applying it grappled with the APA—the statute that lays out how such review works. Its flaws were nonetheless apparent from the start, prompting this Court to revise its foundations and continually limit its application.”^[64]The Court also commented that “[e]xperience has also shown that Chevron is unworkable.”^[65]Very generally, the Court stated that “[t]he defining feature of its framework is the identification of statutory ambiguity, which requires deference at the doctrine’s second step. But the concept of ambiguity has always evaded meaningful definition.”^[66] On this point, the Court continued by noting that “[b]ecause Chevron in its original, two-step form was so indeterminate and sweeping, we have instead been forced to clarify the doctrine again and again. Our attempts to do so have only added to Chevron’s unworkability, transforming the original two-step into a dizzying breakdance. And the doctrine continues to spawn difficult threshold questions that promise to further complicate the inquiry should Chevron be retained.^[67] As such, the Court noted, in part, that “[r]ather than safeguarding reliance interests, Chevron affirmatively destroys them […] Chevron accordingly has undermined the very ‘rule of law’ values that stare decisis exists to secure.”^[68]

While the Court refused to apply stare decisis to retain the Chevron deference doctrine, the Court noted that “we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.”^[69]On this point, the Court stated “[m]ere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chevron is, at best, ‘ just an argument that the precedent was wrongly decided.’”^[70] As such, the Court noted “[t]hat is not enough to justify overruling a statutory precedent.”^[71]

What’s next? Loper Bright and Relentless head back to the lower courts

For the reasons outlined above, the Court vacated the judgments of the D.C. and First Circuits which relied on Chevron and remanded (sent back) the cases to the lower courts for further proceedings consistent with the Court’s opinion.^[72]

Concurring Opinions

Justice Thomas filed a concurring opinion. In general, Justice Thomas agreed with the majority opinion that the Chevron deference doctrine does not comport with the APA and that judges, not agencies, should decide questions of law and interpret constitutional and statutory provisions.^[73] In addition, Justice Thomas noted that he filed a separate concurrence “to underscore a more fundamental problem: Chevron deference also violates our Constitution’s separation of powers.”^[74] Justice Thomas opined that Chevron compels judges to abdicate their Article III “’judicial power’” and that “Chevron deference also permits the Executive Branch to exercise powers not given to it.”^[75] On this point, Justice Thomas commented that the Founders envisioned that courts would check Executive Power and, from that view, he stated: “Chevron was thus a fundamental disruption of our separation of powers. It improperly strips the courts of judicial power by simultaneously increasing the power of executive agencies. By overruling Chevron, we restore this aspect of our separation of powers.”^[76]

Justice Gorsuch also filed a lengthy concurring opinion. While a detailed review of Justice Gorsuch’s detailed opinion is outside this article’s scope, Justice Gorsuch, in part, expanded upon the majority’s decision not to apply stare decisis to uphold Chevron in greater detail. In supporting the majority on this point, Justice Gorsuch, generally, outlined three “lessons” that “weigh firmly" in favor of the majority’s decision against applying stare decisis stating: “Lesson 1, because Chevron deference contravenes the law Congress prescribed in the Administrative Procedure Act. Lesson 2, because Chevron deference runs against mainstream currents in our law regarding the separation of powers, due process, and centuries-old interpretive rules that fortify those constitutional commitments. And Lesson 3, because to hold otherwise would effectively require us to endow stray statements in Chevron with the authority of statutory language, all while ignoring more considered language in that same decision and the teachings of experience.”^[77]

Further, Justice Gorsuch appeared to anticipate potential criticism that the present Court was overruling another long-standing decision stating, in part: “During the tenures of Chief Justices Warren and Burger, it seems this Court overruled an average of around three cases per Term, including roughly 50 statutory precedents between in the 1960s and 1980s alone (citation omitted). Many of these decisions came in settings no less consequential than today’s. In recent years, we have not approached the pace set by our predecessors, overruling an average of just one or two prior decisions each Term. But the point remains: Judicial decisions inconsistent with the written law do not inexorably control.”^[78]

In addition, Justice Gorsuch, agreeing with the majority, rejected arguments that Chevron should be retained on grounds of workability and reliance, noting, in general, that the courts have continually refined Chevron over the years and that Chevron’s framework does not foster reliability given, very generally, that rules are subject to administrative, bureaucratic, and political changes.^[79]

Dissenting Opinions

Justices Sonia Sotomayor and Elena Kagan filed dissenting opinions, with Justice Ketanji Brown Jackson filing a dissent only with respect to the Relentless case (Justice Jackson had recused herself from the Loper Bright decision). While a complete review of these opinions are outside this article’s scope, in general, the dissenting Justices believed that Chevron was rightly decided and should remain in force. In support of retaining Chevron, the dissenting Justices, very generally, rejected that the APA “suddenly” controlled the issue and by overruling Chevron the majority “[i]n one fell swoop, . . . today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”^[80]

Further, the dissenting Justices noted the important role that an agency’s training and subject matter expertise can play in interpreting and applying a law, noting that “agencies often know things about a statute’s subject matter that courts could not hope to.”^[81] While the dissenting Justices argued to retain Chevron, they acknowledged that deference to agencies is not always appropriate, and, in that regard, viewed the courts refinements to Chevron over the years to deny deference in certain cases in which Congress “ha[d] no reason to prefer an agency to a court.”^[82] On this point, the dissenting Justices commented that “[t]he majority treats those ‘refinements’ as a flaw in the scheme, but they are anything but.”^[83] The dissenting Justices also argued that stare decisis weighed “heavily against overruling Chevron” noting, in part, that “Congress and federal agencies alike have relied on Chevron – have assumed its existence – in much of their work for the last 40 years.”^[84]

Is the Supreme Court’s decision a surprise?

Undoubtedly, the Supreme Court’s overruling of Chevron is a significant development as Chevron has served as the primary basis for how the federal courts asses the validity of a federal agency’s interpretation of federal statutes for the past 40 years. In fact, one source reports that the Supreme Court and lower federal courts have cited Chevron more than 18,000 times since 1984.^[85]In this regard, the Court’s new ruling in Loper Bright ushers in a new (and, in many respects, yet to be defined) landscape as Chevron recedes from view. While the Court’s decision in Loper Bright is seismic in many ways, based on the author’s research, it may not come as a total surprise.

In this regard, while a complete review of the judicial, academic, and political history of Chevron is beyond this article’s scope, in general, there were signs leading up to the Court’s decision in Loper Bright that Chevron was headed toward possible modification, or an outright overruling, the latter which has now occurred. On this point, a 2023 Congressional Research Service (CSR) report stated that “[i]n the last decade or so, … the Chevron framework has come under increasing fire from various corners of legal academia, the courts, and political branches.”^[86]This source further references that during this same timeframe the Supreme Court “has relied on the Chevron framework less and less,” noting that “[i]n the Court’s most recent full term, Chevron went unmentioned in three cases where an agency interpretation of federal law was at issue, leading some to speculate that the Court might soon overrule or at least curtail the Chevron framework.”^[87] In fact, the Court in Loper Bright noted that it had not deferred to an agency interpretation under Chevron since 2016.^[88]

On this latter point, the CSR reported that several of the Court’s more conservative leaning Justices had called Chevron into question over the past few years, raising various concerns which, in part, surfaced in the Loper Bright decision, including the view that Chevron unlawfully abdicated judicial authority by ceding and concentrating power within the executive branch.^[89] Interestingly, at the federal appellate level, the CSR report referenced a 2018 study of 42 federal appellate judges noting “that, with some notable exceptions, most judges surveyed do not favor the Chevron framework,”^[90] with some of these judges reportedly questioning Chevron’s “key underlying assumptions that ambiguity in statutory text indicates congressional delegation and that agencies have special expertise interpreting the statutes they administer.”^[91]Notwithstanding, all the judges surveyed believed they were bound by Supreme Court precedent applying Chevron.^[92]In terms of the appellate court’s application of Chevron, the CSR report outlines some interesting findings which are discussed in the endnote to this sentence.^[93] From the state perspective, it is also noted that several states have also taken measures over the past several years that have weakened or overturned agency deference either through court rulings or legislation.[94]

Given this backdrop, the Court’s overruling of Chevron, no matter one’s viewpoint of the decision, may not really come as a surprise, as it could be viewed as the culmination of changing views and forces targeting its continuing existence over the past several years.

Going Forward

Based on this ruling, the Court has vacated the judgments of the D.C. and First Circuits which relied, in pertinent part, on Chevron and remanded (sent back) the Loper Bright and Relentless cases to the lower courts for further proceedings consistent with the Court’s opinion. It is important to note that the Court did not explicitly invalidate any other Court decisions, agency regulations, or existing agency policies as part of its new ruling. On this note, for those interested in the Medicare secondary payer aspect, it remains to be seen whether this case will be used to challenge existing or future CMS rulemaking and policies.

From a more macro view, we now enter a post-Chevron world for the first time in 40 years when it comes to questions regarding agency interpretations and rulemaking, with the Loper Bright decision now controlling how courts address these questions. In this regard, exactly how the Loper Bright landscape will develop is uncertain in many respects as the courts take a more determinative role in statutory interpretation and assessing agency actions. We will need to wait and see what happens, and we may very well get our first glimpse of this when the lower courts on remand in Loper Bright and Relentless go back and re-address the issues in those cases applying the Loper Bright decision. How the courts will apply Loper Bright going forward will certainly be interesting. Also, it will be interesting to see how, if at all, this decision may impact Congress, either in terms of possible efforts to codify Chevron, or with respect to statutory drafting, construction, and delegation.

Questions?

We will continue to monitor events going forwarded related to this event. In the interim, please do not hesitate to contact the author at mpopolizio@verisk.com if you have any questions.

[1] The Chevron decision is also reported at 104 S.Ct. 2778 and 81 L.Ed.2d 694. Given the general nature of this article and in the interest of brevity, the author will use only the citation as contained in the official reporter: 467 U.S. 837.

[2] Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 2.

[3] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024), at *22.

[4] The Chevron decision is also reported at 104 S.Ct. 2778 and 81 L.Ed.2d 694. Given the general nature of this article and in the interest brevity, the author will use only the citation as contained in the official reporter: 467 U.S. 837.

[5] Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 842-843 (1984).

[6] Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 842-843 (1984).

[7] Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 843 (1984).

[8] Loper Bright Enterprises v. Raimondo 2024 WL 3208360 (U.S. June 28, 2024) , at *22.

[9] Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359, 363 (D.C. Court of Appeals, 2022).

[10] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024), at *7.

[11] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024)), at *6.

[12] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *7.

[13] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *7.

[14] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *7, citing 16 U.S.C. § 1853(b)(8).

[15] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) ), at *7.

[16] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) ), at *7.

[17] Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Industry-Funded Monitoring Final Rule, 85 Fed. Reg. 7,414 (Feb. 7, 2020).

[18] The Service established its final rule as part of the informal rulemaking which included a public comment period. On this point, the court in Loper noted that the Service filed a Notice of Availability in September 2018 (83 Fed. Reg. 47,326, Sept. 19, 2018) and Notice of Proposed Rulemaking in November 2018 (83 Fed. Reg. 55,665 (Nov. 7, 2018). Thereafter, the Service approved the Omnibus Amendment (Dec. 18, 2018); and published its final rule on February 7, 2020 (Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Industry-Funded Monitoring Final Rule, 85 Fed. Reg. 7,414 (Feb. 7, 2020). Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359, 363, 364, and n.1 (D.C. Court of Appeals, 2022).

[19] Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359, 364 (D.C. Court of Appeals, 2022).

[20] Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359, 364 (D.C. Court of Appeals, 2022).

[21] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *7.

[22] Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359, 365 (D.C. Court of Appeals, 2022).

[23] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) ), at *7, referencing Loper Bright Enterprises, Inc., v. Raimondo, 544 F.Supp. 3d 82, 107 (D.D.C. 2021)

[24] In general, the D.C. Circuit in applying Chevron step one found the Magnuson Act was ambiguous on the question industry funded monitors stating, in part, that “[n]either Section 1853(b)(8) [of the Magnuson Act], nor any other provision of the Act, explicitly allows the Service to pass on to the industry the costs of monitoring requirements included in fishery management plans” [and that] [n]or do the traditional tools of statutory interpretation provide another basis on which to conclude that the [Magnuson] Act unambiguously supports the Service’s interpretation.” Loper Bright Enterprises, Inc., v. Raimondo, 45 F.4^th 359, 368 (D.C. Court of Appeals, 2022). Regarding the Magnuson Act’s silence on the issue of who was responsible for the cost of at-sea monitoring, the court noted that under Chevron, “such silence in the context of a comprehensive statutory management program for the Service to implement … is a lawful delegation,” meaning, essentially, that the Service had the authority to interpret the statute for rulemaking purposes. Id. at 369 . Under Chevron step two, the court found the Service’s “interpretation of the [Magnuson] Act as authorizing additional industry-funded monitoring programs … reasonable.” Id. In this regard, the court stated, in part, that “Section 1853(b)(8), paired with the Act’s ‘necessary and appropriate’ clauses, demonstrates that the Act considers monitoring “necessary and appropriate” to further the Act’s conservation and management goals. That conclusion provides a reasonable basis for the Service to infer that the practical steps to implement a monitoring program, including the choice of funding mechanism and cost-shifting determinations, are likewise “necessary and appropriate” to implementation of the Act.” Id. The court also rejected the plaintiff’s other challenges related to the Services’ promulgating its final rule. Id.

[25] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *8.

[26] Relentless, Inc. v. Department of Commerce, 62 F.4^th 621, 627 (1^st Cir. 2023).

[27] The Court described the First Circuit’s ruling as follows: “[The First Circuit] relied on a ‘default norm’ that regulated entities must bear compliance costs, as well as the MSA’s sanctions provision, Section 1858(g)(1)(D). (citation omitted) And it rejected petitioners’ argument that the express statutory authorization of three industry funding programs demonstrated that NMFS lacked the broad implicit authority it asserted to impose such a program for the Atlantic herring fishery (citation omitted). The court ultimately concluded that the ‘[a]gency’s interpretation of its authority to require at-sea monitors who are paid for by owners of regulated vessels does not ‘exceed[ ] the bounds of the permissible’ (citation omitted). In reaching that conclusion, the First Circuit stated that it was applying Chevron’s two-step framework. But it did not explain which aspects of its analysis were relevant to which of Chevron’s two steps. Similarly, it declined to decide whether the result was ‘a product of Chevron step one or step two.’” (citation omitted). Loper Bright Enterprises v. Raimondo, Secretary of Commerce, 2024 WL 3208360 (2024), at *8. On this latter point, the First Circuit stated: “We need not decide whether we classify this conclusion as a product of [Chevron] step one or step two. Congress expressly authorized [the Service] to require vessels to carry monitors. And at the very least, it is certainly reasonable for the Agency to conclude that its exercise of that authority is not contingent on its payment of the costs of compliance.” Relentless, Inc. v. Department of Commerce, 62 F.4^th 621, 633-34 (1^st Cir. 2023).

[28] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360(U.S. June 28, 2024), at *12. 5 U.S.C. § 706 states, in full, as follows: “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-- (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.” Id.

[29] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *12.

[30] On this point, the Court stated: “The text of the APA means what it says. And a look at its history if anything only underscores that plain meaning. According to both the House and Senate Reports on the legislation, Section 706 ‘provide[d] that questions of law are for courts rather than agencies to decide in the last analysis.’ H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946) (emphasis added); accord, S. Rep. No. 752, 79th Cong., 1st Sess., 28 (1945). Some of the legislation’s most prominent supporters articulated the same view. See 92 Cong. Rec. 5654 (1946) (statement of Rep. Walter); P. McCarran, Improving “Administrative Justice”: Hearings and Evidence; Scope of Judicial Review, 32 A. B. A. J. 827, 831 (1946). Even the Department of Justice—an agency with every incentive to endorse a view of the APA favorable to the Executive Branch—opined after its enactment that Section 706 merely ‘restate[d] the present law as to the scope of judicial review.’ Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947); see also Kisor, 588 U. S., at 582 (plurality opinion) (same). That ‘present law,’ as we have described, adhered to the traditional conception of the judicial function. See supra, at 9–13. Various respected commentators contemporaneously maintained that the APA required reviewing courts to exercise independent judgment on questions of law. Professor John Dickinson, for example, read the APA to “impose a clear mandate that all [questions of law] shall be decided by the reviewing Court itself, and in the exercise of its own independent judgment.” Administrative Procedure Act: Scope and Grounds of Broadened Judicial Review, 33 A. B. A. J. 434, 516 (1947). Professor Bernard Schwartz noted that § 706 ‘would seem ... to be merely a legislative restatement of the familiar review principle that questions of law are for the reviewing court, at the same time leaving to the courts the task of determining in each case what are questions of law.’ Mixed Questions of Law and Fact and the Administrative Procedure Act, 19 Ford. L. Rev. 73, 84–85 (1950). And Professor Louis Jaffe, who had served in several agencies at the advent of the New Deal, thought that § 706 leaves it up to the reviewing ‘court’ to “decide as a ‘question of law’ whether there is ‘discretion’ in the premise’”—that is, whether the statute at issue delegates particular discretionary authority to an agency. Judicial Control of Administrative Action 570 (1965).” Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *13.

[31] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *13, citing, Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).

[32] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *13, citing, United States v. American Trucking Assns., Inc., 310 U. S. 534, 549 (1940).

[33] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) .

[34] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *14, citing H. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27 (1983).

[35] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *14, citing Michigan, 576 U. S., at 750 (quoting Allentown Mack Sales & Service, Inc. v. NLRB, 522 U. S. 359, 374 (1998)); see also Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983).

[36] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *14.

[37] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *8, citing Article III of the Constitution.

[38] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *9, citing The Federalist No. 37, p. 236 (J. Cooke ed 1961) (J. Madison).

[39] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *9, citing Marbury v. Madison, 1 Cranch 137, 177 (1803).

[40] On this point, after referencing Marbury v. Madison (n. 58), the Court stated:

“And in the following decades, the Court understood ‘interpret[ing] the laws, in the last resort,’ to be a ‘solemn duty’ of the Judiciary. United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J., for the Court). When the meaning of a statute was at issue, the judicial role was to ‘interpret the act of Congress, in order to ascertain the rights of the parties.’ Decatur v. Paulding, 14 Pet. 497, 515 (1840). The Court also recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. For example, in Edwards’ Lessee v. Darby, 12 Wheat. 206 (1827), the Court explained that “[i]n the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.” Id., at 210; see also United States v. Vowell, 5 Cranch 368, 372 (1809) (Marshall, C. J., for the Court).

Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. See Dickson, 15 Pet., at 161; United States v. Alabama Great Southern R. Co., 142 U. S. 615, 621 (1892); National Lead Co. v. United States, 252 U. S. 140, 145–146 (1920). That is because ‘the longstanding ‘practice of the government’—like any other interpretive aid—'can inform [a court’s] determination of ‘what the law is.’ NLRB v. Noel Canning, 573 U. S. 513, 525 (2014) (first quoting McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); then quoting Marbury, 1 Cranch, at 177). The Court also gave ‘the most respectful consideration’ to Executive Branch interpretations simply because ‘[t]he officers concerned [were] usually able men, and masters of the subject,’ who were ‘[n]ot unfrequently ... the draftsmen of the laws they [were] afterwards called upon to interpret.’ United States v. Moore, 95 U. S. 760, 763 (1878); see also Jacobs v. Prichard, 223 U. S. 200, 214 (1912). ‘Respect,’ though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge ‘certainly would not be bound to adopt the construction given by the head of a department.’ Decatur, 14 Pet., at 515; see also Burnet v. Chicago Portrait Co., 285 U. S. 1, 16 (1932). Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in cases where [a court’s] own judgment ... differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.’ Dickson, 15 Pet., at 162.” Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *9.

[41] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *10.

[42] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *10, citing, United States v. American Trucking Assns., Inc., 310 U. S. 534, 544 (1940); see also Social Security Bd. v. Nierotko, 327 U. S. 358, 369 (1946); Medo Photo Supply Corp. v. NLRB, 321 U. S. 678, 681–682, n. 1 (1944).

In addition, on this point, the Court also referenced the following:

“Perhaps most notably along those lines, in Skidmore v. Swift & Co., 323 U. S. 134 (1944), the Court explained that the ‘interpretations and opinions’ of the relevant agency, ‘made in pursuance of official duty and “based upon ... specialized experience,’ ‘constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,’ even on legal questions. Id., at 139–140. ‘The weight of such a judgment in a particular case,’ the Court observed, would ‘depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ Id., at 140. On occasion, to be sure, the Court applied deferential review upon concluding that a particular statute empowered an agency to decide how a broad statutory term applied to specific facts found by the agency. For example, in Gray v. Powell, 314 U. S. 402 (1941), the Court deferred to an administrative conclusion that a coal-burning railroad that had arrangements with several coal mines was not a coal “producer” under the Bituminous Coal Act of 1937. Congress had “specifically” granted the agency the authority to make that determination. Id., at 411. The Court thus reasoned that “[w]here, as here, a determination has been left to an administrative body, this delegation will be respected and the administrative conclusion left untouched” so long as the agency’s decision constituted “a sensible exercise of judgment.” Id., at 412–413. Similarly, in NLRB v. Hearst Publications, Inc., 322 U. S. 111 (1944), the Court deferred to the determination of the National Labor Relations Board that newsboys were ‘employee[s]’ within the meaning of the National Labor Relations Act. The Act had, in the Court’s judgment, “assigned primarily” to the Board the task of marking a “definitive limitation around the term ‘employee.’ Id., at 130. The Court accordingly viewed its own role as ‘limited’ to assessing whether the Board’s determination had a ‘warrant in the record’ and a reasonable basis in law.’” Id., at 131. Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *10

[43] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *14.

[44] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *15.

[45] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *15, citing Perez v. Mortgage Bankers Assn., 575 U. S. 92, 109 (2015).

[46] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *15, citing Brief for Respondents in No. 22–1219, pp. 13, 37–38; post, at 4–15 (opinion of Kagan, J).

[47] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) ), at *15, citing C. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 445 (1989).

[48] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *16, citing Chevron, 467 U.S. at 865.

[49] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *16.

[50] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *16.

[51] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *16.

[52] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *16.

[53] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17.

[54] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17

[55] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17, Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).

[56] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17.

[57] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17.

[58] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17.

[59] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17.

[60] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17.

[61] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *17. As part of this analysis, the Court stated also noted: “That is not to say that Congress cannot or does not confer discretionary authority on agencies. Congress may do so, subject to constitutional limits, and it often has. But to stay out of discretionary policymaking left to the political branches, judges need only fulfill their obligations under the APA to independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA.” Id.

[62] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *19.

[63] Loper Bright Enterprises v. Raimondo, Secretary of Commerce, 2024 WL 3208360 (2024), at *19, citing, Knick v. Township of Scott, 588 U. S. 180, 203 (2019) (quoting Janus v. State, County, and Municipal Employees, 585 U. S. 878, 917 (2018)

[64] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *19.

[65] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) ), at *19.

[66] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *19.

[67] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *20.

[68] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) ), at *21.

[69] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) ), at *21, citing, CBOCS West, Inc. v. Humphries, 553 U. S. 442, 457 (2008).

[70] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *21, citing, Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266 (2014).

[71] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *21

[72] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *22.

[73] Loper Bright Enterprises v. Raimondo, , 2024 WL 3208360 (U.S. June 28, 2024) , at *22 (Thomas, J., concurring).

[74] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *22 (Thomas, J., concurring).

[75] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *22-23 (Thomas, J., concurring).

[76] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *23 (Thomas, J., concurring).

[77] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *28 (Gorsuch, J., concurring).

[78] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *27 (Gorsuch, J., concurring).

[79] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *32-34 (Gorsuch, J., concurring).

[80] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *40 (Kagan, Sotomayor, and Jackson, J., dissenting)

[81] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) ), at *40-42 (Kagan, Sotomayor, and Jackson, J., dissenting).

[82] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *43 (Kagan, Sotomayor, and Jackson, J., dissenting).

[83] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *43 (Kagan, Sotomayor, and Jackson, J., dissenting).

[84] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *52 (Kagan, Sotomayor, and Jackson, J., dissenting).

[85] Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 2.

[86] Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 2.

[87] Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 2.

[88] Loper Bright Enterprises v. Raimondo, 2024 WL 3208360 (U.S. June 28, 2024) , at *4.

[89] For example, the Congressional Research Service report notes that Justice Gorsuch in his recent dissent in Buffington v. McDonough, 143 S.Ct. 14 (2022) argued, in part, that the Court owes the lower courts clarity by explicitly overruling Chevron. Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 2. Another resource outlines and discusses recent statements made by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Thomas as part of judicial decisions (and in other contexts) calling Chevron into question. See,Chevron deference (doctrine) - Ballotpedia

[90] Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 4.

[91] Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 4.

[92] Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 4.

[93] On this point, the CSR report looked primarily at a 2017 study (“the 2017 study”) that evaluated over 1,300 court appeals case from 2003 to 2013, along with subsequent surveys. Overall, the 2017 study found that the courts of appeals on average applied Chevron in almost three-quarters of cases involving agencies. Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 2. A subsequent study of court of appeals cases from 2020-2021 revealed that the circuit’s still applied Chevron at similar rates noted in the 2017 study, finding the courts of appeals applied Chevron in almost 85% of cases. Id. at 3. In contrast, and interestingly, the CSR notes that other studies found that the Supreme Court only applied Chevron one quarter to one-third of cases where an agency interpretation is at issue from the mid-1980’s to the mid 2000’s. Id. at 2-3. Overall, the CSR report reflects that the 2017 study noted that agencies “were significantly more likely to prevail” when Chevron was applied (74%), even if the court decided that the statute was unambiguous and did not defer to the agency’s interpretation, than when a court did not apply deference (38.5%). Id. at 3. A 2006 study of Supreme Court decisions found that agencies prevailed around 76% of the time when the Court applied Chevron. Id.

Perhaps not surprisingly, the CSR report notes that different circuits have applied Chevron differently. For example, per the 2017 study, the D.C. Circuit was noted to have “led the way in applying Chevron,” relying on it approximately 89% of cases involving agency statutory interpretations, while the Sixth Circuit applied the doctrine in only 61% of cases. Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 3. Once a court of appeals applied Chevron, it was noted that they were “highly deferential to the agencies.” Id. For example, per the 2017 report, overall agency win rates across all the circuits was approximately 77%. Id. The First Circuit was noted as the most deferential circuit, where agencies prevailed in about 83% of the time; whole the Ninth Circuit was the least deferential, finding in favor of agencies in approximately 66% of cases. Id. The CSR noted that the D.C. Circuit, which is the circuit viewed as having the most experience in administrative law, was “in the middle of the pack” at 73%. Id. Of note, while the Sixth Circuit applied Chevron less than any other district, when that circuit did apply Chevron, the agencies prevailed 88% of the time. Id. at 3-4.

Interestingly, the CSR report also noted differences in the circuit’s application of Chevron with respect to Chevron’s two steps which impacted the likelihood that the agency would prevail. For example, the CSR report noted that the 2017 study revealed that the courts of appeals resolved 30% of cases at the Chevron step one level, but that the agency prevailed only 39% of the time. Benjamin M. Barczewski, Chevron Deference in the Court of Appeals, Congressional Research Service (June 8, 2023), p. 3. The 2017 study further reflected that 70% of agency interpretation cases made it to step two, and that the courts found nearly all agency interpretations (93.8%) reasonable applying the Chevron step two analysis. Id. Regarding these findings, the 2017 study noted that the Fourth Circuit did not invalidate a single agency interpretation at Step Two during the study period (2003-2013). Id. Of note, a subsequent 2020-2021 study reported that 59% of cases made it to Step Two, with the agency’s win rate at 78%. Id.

[94] See e.g., Supreme Court may end Chevron doctrine. These states have already done it. - E&E News by POLITICO (eenews.net)