SCOTUS May Tighten ‘Chevron Deference’: Attorneys

Attorneys Chad Landmon and Aaron Savit (Axinn, Veltrop & Harkrider) say the Supreme Court heard oral arguments in two cases this week that appeared to signal the court is likely to restrict, if not eliminate, the so-called Chevron deference under which courts have given deference to executive branch agencies in many instances in which Congress has not spoken directly to an issue. The Cornell Law School Legal Information Institute says Chevron deference is one of the most important principles in administrative law.

It is named for the 1984 Supreme Court decision in Chevron v. Natural Resources Defense Council and refers to the doctrine of judicial deference given to administrative actions. In Chevron, the Supreme Court set forth a four-prong test as to when a court should defer to an agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as Congress had not spoken directly to the precise issue at question. 

Landmon and Savitt say a series of cases in recent years have signaled the court’s interest in moving away from the Chevron deference. And, they say, questions from several of the justices during this week’s oral arguments seemed to indicate the Court will almost certainly narrow Chevron or overturn it completely. They say such action would surely lead to many court cases challenging decisions made by federal agencies, including FDA.

The post says that while the court’s more conservative judges seemed largely unpersuaded by arguments from the Solicitor General to maintain some form of Chevron deference, the more liberal justices framed the question as a choice between delegating interpretive authority to agency experts, who are accountable to the public in the next presidential election, and unelected judges who often are appointed for life.

While the two cases the court heard involved fisheries, any limitation on or overturning of the Chevron deference would apply to all federal agencies and “will undoubtedly lead to an uptick in litigation challenges and greater scrutiny of administrative decisions,” the lawyers write.