Among the end of term decisions of the Supreme Court was one of enormous significance that will mean little to most people. If they hear about it at all it will be as a result of criticism by those on the left who view it as extreme right wing deregulation. It is another case in which the Court overturned a longstanding precedent. 

The present case, Loper Bright Enterprises v. Raimondo, arose out of a rule adopted by the National Marine Fisheries Service, a federal agency, requiring Atlantic herring fishermen to pay the fees for observers that they were required to carry on their boats to monitor their fishing activity. The company argued that the relevant Act did not authorize the agency to pass the monitoring costs on to the fishermen. The lower courts deferred to the agency’s determination that it had that authority.

Forty years ago the Supreme Court, in the case of Chevron v. Natural Resources Defense Council, gave rise to what has become known as “Chevron deference.” Under that doctrine, courts were to accept the interpretation given to statutory language by the administrative agency charged with enforcement of the statute rather than interpreting the statutory language themselves. Until then, interpreting statutory language was a judicial function for the courts, and they could reject an administrative interpretation.

In the context of the Chevron case, “Chevron deference” actually made sense, as I will explain. Unfortunately, however, it evolved into a clear abdication of judicial responsibility as administrative agencies were permitted to usurp the legislative function of Congress. Chevron deference thus allowed the federal bureaucracy to vastly expand its powers. It was against that expansion that the conservative majority of the Court objected in overruling Chevron.

In the Chevron case, the Environmental Protection Agency promulgated a regulation dealing with air pollution that required a definition of the statutory language “stationary source.” The statute did not define the term, and so the question was whether to allow treating “all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single ‘bubble’” or whether each pollution-emitting device was to be treated individually. The agency adopted the “bubble” interpretation. 

It should be obvious that judges could conclude that either interpretation was reasonable. So, if both interpretations are reasonable, which interpretation should a court choose? Someone has to decide, and one panel of judges might choose the bubble and another panel of judges might choose the individual interpretation. All the Court in Chevron really decided was that in cases like this the courts should allow the agency charged with enforcement of the statute to decide. The agency, created by Congress to deal with air pollution, is obviously in a better position to decide which interpretation best advances the objective of the statute. Essentially, the Court decided that in cases like this the courts should defer to the agency’s interpretation of the statutory language rather than interpreting the language themselves.

If the Court had left it at that, Chevron would probably still be good law today. 

However, in an effort to provide guidance to courts wrestling with the same problem in future cases, the Court created a two-step formula for courts to follow. The first step was to determine if Congress had “spoken to the precise question at issue.” If it had, that would be the end of the matter. But if it had not, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

What the Court said next is what gave rise to the expansion of Chevron well beyond merely allowing the agency to choose from two or more reasonable interpretations of statutory language. According to an earlier case: “The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”. . . Thus, “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”

This language went well beyond talking about interpreting statutory language. It was talking about an agency making rules and regulations pursuant to a Congressional delegation of authority in a specific area. Obviously, if Congress has delegated authority to an agency to make rules and regulations, so long as those rules and regulations are within the scope of the delegation, a court has no authority to substitute its judgment for that of the agency.

However, what happened thereafter was that agencies, rather than promulgating rules and regulations pursuant to the Administrative Procedure Act (APA), would consider their pronouncements to be interpretations of the statutory language. And courts would defer to the agency’s pronouncement under Chevron. Agencies were, thus, able to avoid the procedural requirements of the APA for promulgating rules and regulations. In some instances the agency was able to expand its own authority by its interpretation of its enabling legislation. The more ambiguous the agency’s organic or enabling statute, the more the agency was able to get away with so long as courts felt obliged to defer to the agency.

According to the Court, “Chevron was a judicial invention that required judges to disregard their statutory duties. And the only way” to remedy that problem “is for us to leave Chevron behind.”

Howard Lurie is Emeritus Professor of Law, Charles. Widger School of Law, Villanova University