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Chevron

1984-2024

The End of Chevron and …

the rule of law in the

administrative State

Jonathan Gutoff

Roger Williams University School of Law

jgutoff@rwu.edu

How to Review the Exercise of Agency Authority?

• Common Law Prerogative Writs:
• Writs of mandamus and prohibition – to prevent an agency or lower court from abusing its discretion.
• Writ of certiorari to examine the record.
• Writ of quo warranto to examine the authority of an officer or corporate body.
• Writ of habeas corpus to examine the legality of a detention.
• Prior to APA many statutes have their own review provisions.

The APA: Title 5, Section 706

“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.”

Question: How should a reviewing court “interpret … statutory provisions.”

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�Review of Agency Legal Conclusion Before Chevron.

• Courts Review Pure Questions of Law De Novo
• Courts Give Deference to Agency Findings on Mixed Involving Technical Issues.
• Agency Expertise
• Agency Consistency
• Exception: Where an issue of broad national importance is considered. Packard Motor Car Co v. NLRB,�330 U.S. 485 (1947)

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Chevron’s ”bubble theory” for what is a stationary source. The EPA says yes. The D.C. Circuit says no. The Supreme Court defers to EPA.

Winners and … Losers

Anne M. Gorsuch,

EPA Administrator when

the rule was promulgated

1984: For The N.Y. Times, just a data point of conservative domination:

July 8, 1984, p. 1, col. 1

July 8, 1984, p. 18, col. 2

What Linda Greenhouse Wrote Back Then:

The Court reinstated a key aspect of a policy of the Environmental Protection Agency for determining if industries are meeting air quality standards. The decision permitted extension of the concept to areas of the country not yet in compliance with the Clean Air Act. Under the agency's policy, an entire industrial plant is viewed as a single emissions source for air pollution, and increased emission of a particular pollutant is permitted from one part of the plant as long as it is canceled out by a decrease from another part. (Chevron v. Natural Resources Defense Council, No. 82-1005).

A “Quiet Revolution”

• Initially, if it represented a change in the law.
• Chevron was championed by Scalia first as Judge of the D.C. Circuit, then as an Associate Justice of the Supreme Court.
• Simplify the questions of deference.
• Remove judicial discretion.
• Characterized as a “two step”
• 1. Has Congress spoken clearly?
• 2. If not, is the agency’s interpretation of the statute reasonable.

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Full Development – Not So Simple

• Preliminary Questions
• Does the agency administer the statute?
• Is this a major question?
• Constitutional avoidance
• Cannon of statutory interpretation
• Step 0: Has the agency spoken authoritatively? If not, give it not Skidmore deference, to the extent it has the power to persuade.
• Formal Rulemaking or adjudication
• Perhaps other forms of activity
• Step 1: Has Congress Spoken clearly on the precise question at issue.
• How precise is precise:
• How Clear?
• What is unclear?
• It’s hard to figure out, or
• If cannons of construction (or other tools of statutory interpretation) won’t answer the question.
• Step 2: Is it reasonable?
• What if it contradicts judicial interpretation?

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“The Chevron”

Consequences of Chevron

• Some level of interpretive authority transferred from the judiciary to the executive.
• To some extent may make certain aspects of regulation and deregulation easier.
• Pro-labor and environment and Pro-business regulations and deregulation easier.

Deregulation and Regulation face the Same Hurdles.

The APA: “’rule making’ means agency process for formulating, amending, or repealing a rule….” 5 U.S.C. § 551(5) (emphasis added).

The Supreme Court: Motor Veh. Mfrs. Ass'n v. State Farm Ins., 463 U.S. 29 (1983)

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To be sure, among administrations,�there is a difference …

Nearly 100 Years from “Start” of the Administrative State to Chevron

1984

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Chevron v. Natural

Resources Defense

Council

1887

2024

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Loper Bright Indus.

v. Raimondo

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Progressive Era, New Deal, WWII, etc.

�Number of Employees of "Administrative State” Keeps Expanding at Same Rate Pre and Post Chevron

The Federal Reserve Bank of St. Louis

Massachusetts v. EPA, 549 U.S. 497 (2007)

The EPA is compelled to undertake a rulemaking for greenhouse gasses.

Massachusetts v. EPA – The Statutory Question: What Does § 202(a)(1) of the Clean Air Act Require of the EPA?

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• The Statute: The EPA “shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class ... of new motor vehicles ... which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution ... reasonably ... anticipated to endanger public health or welfare …”
• The Court (Stevens, Souter, Kennedy, Ginsburg, Breyer): Chevron doesn’t apply because the relevant parts of the statute were clear. The EPA’s refusal was “arbitrary, capricious, ... or otherwise not in accordance with law.” See 5 U.S.C. §706(2)(A).
• The Dissent (Roberts, Scalia, Thomas, Alito): EPA should get Chevron deference on its interpretation of “judgment,” “air pollutant,” and “air pollution.”

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���Black Lung Regulations: Pauly v. Bethenergy Mines, Inc. 501 U.S. 680 (1991) and Pittston Coal Group v. Sebben, 488 U.S. 105 (1988)

• Black lung benefits program transferred from HEW to Labor (OWCP) in 1972.
• Labor authorized to promulgate regulations ”not more restrictive” on recovery than HEW.
• The opinions (the Court and dissent, respectively) supporting the industry party looked to Chevron to claim that the statute was ambiguous and that “more restrictive” meant overall, not more limiting of recovery.
• The opinions by Justice Scalia (the dissent and the Court, respectively) supporting the employee or survivors concluded that the statute was clear, and that if an employee could have recovered under the HEW regulations but not the Labor regulations then the Labor regulations were more restrictive.

Problems with Chevron

• Separation of Powers
• Between executive and legislature – non-delegation.
• Between executive and judiciary – power to “say what the law is.”
• 5 U.S.C.. § 706 commands that reviewing courts “interpret … statutory provisions.”
• Instability of law. Understanding of a statute can change from administration to administration.
• Increasing additions to the test.
• Did agency speak with “authority”
• Is the agency taking on a “major question”
• Inability to get rid of the problem of interpretation. Question of is a statutory provision “ambiguous” is nearly as problematic as determining
• Organized conservative opposition
• New Textualism (?), has less respect for stare decisis, it yearns for Civil Law primacy of the text.

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

• Maugnuson-Stevens Act requires fisheries observers.
• For three types of fishing vessel, it mandates that the vessel owners pay for the observers.
• For other fisheries, it is silent.
• In 2020 NMFS promulgated a rule requiring owners of vessels in the Atlantic Herring fishery to pay for observers.
• Owners of vessels sue to have the rule vacated/enjoined. DC Circuit and First Circuit uphold based on Chevron deference.
• The Supreme Court overrules Chevron and remands for further proceedings.

Seafreez, Ltd via Nation Fisherman

Post Chevron: Transfer of Power to the Judiciary, and Less Regulatory and Deregulatory Flexibility

• Extent of effect is unclear.
• E.g, Lissak v. Commissioner Internal Revenue, 125 F.4th 245 (D.C. Cir. 2025)
• Lissak wanted to be paid as a whistleblower under a statute providing for payment to those who provide information leading to a successful “administrative action.”
• IRS had promulgated a rule that information that resulted in an investigation which led to discovery of unrelated violation of the Code was a separate “administrative action.”
• Based on the rule the Tax Court denied a reward.
• Lissak appealed to the D.C. Circuit, which affirmed the Tax Court based on Chevron.
• After Loper Bright the Supreme Court remanded to the D.C. Circuit.
• D.C. Circuit again affirmed, finding that the reading of the IRS was the best reading of the Code.

Problem of removal of officers of the United States.

• Nothing in Article II, outside of Article II, section 4: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
• Decision of 1789
• Month-long debate.
• Congress creates Treasury, War (now Defense), and Foreign Affairs (now State)
• No provision for removal.
• Acts creating the departments discuss possession of papers after the relevant secretary “shall be removed from office by the President of the United States.”

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Architect of the Capitol

Myers v. United States, 272 U.S. 72 (1926)

• Congress created position of Postmaster First Class. Holder of office removable by advice and consent of the senate.
• In 1920 President Willson remove Fred Myers from his position as Postmaster First Class in Portland, Oregon.
• Myers sues to recover back pay.
• Court concludes statute limiting president’s authority to remove executive officers is unconstitutional.

Humphry’s Executor v. United States, 295 U.S. 602 (1935)

• Statute provides that FTC commissioners serve for fixed terms and can only be removed for cause.
• In 1933 President Roosevelt fires William Humphry without cause before his term was up.
• Humphry sues for back pay.
• The court holds that FTC commissioners are not executive officers but separate from the executive.

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Many Multimember Independent Agencies, Including …

Kelly Slaughter and Bedoya v. United States (?)

• President Trump has removed two FTC commissioners, Rebecca Kelly Slaughter and Alvaro Bedoya, without cause.
• Reason to think the Supreme Court could uphold firing and overrule Humprhry’s Executor. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020).

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Without Chevron, easier for courts to …

• Counter purely political decision making
• Prevent drastic swings in policy that might be greater with all members of multimember agency chosen by the President.
• Preserve the rule of law.