The Quiet Death of Chevron Deference

The Supreme Court of the United States opened its October term with Sackett v. Environmental Protection Agency, a dispute between an Idaho couple and the Environmental Protection Agency (EPA) regarding its definition of wetlands as “waters of the United States” under the Clean Water Act (CWA). In 2007, petitioners Michael and Chantell Sackett began to fill in wetlands on their property in preparation for construction. The EPA ordered the Sacketts to restore the wetlands to their former state, deeming them “navigable waters” and therefore subject to CWA regulation. The EPA broadly defines “waters of the United States” to include bodies such as interstate wetlands and “wetlands adjacent to waters,” utilizing its enforcement power to guarantee comprehensive protections for American waterways. By agreeing to hear Sackett, the Court signified its willingness to adopt a framework that would significantly narrow the EPA’s definition and curtail the Agency’s authority.

Sackett is one of a number of recent cases that puts administrative rulemaking front and center, and with it a doctrine known as Chevron deference that has governed administrative law for decades. Drawing its name from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), this doctrine states that when “the legislative delegation to an agency on a particular question is implicit, rather than explicit… a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Under Chevron deference, agencies enjoy a great deal of freedom in interpreting the scope of relevant statutes and their own authority. Importantly, courts support these agency interpretations, upholding them 77.4% of the time when Chevron is applied and only in 53.6% of cases when it is not. 

Among skeptics of the delegation of Congressional authority — including current members of the Supreme Court — Chevron is an infamous case. In 2016, then-Judge Gorsuch wrote that “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.” And in 2020, Justice Thomas penned a scathing dissent arguing that Chevron “compels judges to abdicate the judicial power without constitutional sanction… gives federal agencies unconstitutional power… [and] undermines the ability of the Judiciary to perform its checking function on the other branches.” However, the Court has repeatedly declined to overrule Chevron, instead opting to narrow its scope or simply ignore it altogether.

This phenomenon is clear in the Court’s recent jurisprudence. Two recent cases, American Hospital Association v. Becerra (2022) and West Virginia v. Environmental Protection Agency (2022), undermine the established authority of federal agencies in a way that is contrary to the Court’s own precedents. Sackett, when decided, is likely to join them. In American Hospital Association, the justices unanimously rejected a decision by the Department of Health and Human Services to cut drug reimbursement rates for certain hospitals. In an opinion reversing the D.C. Circuit, which upheld the rate cut under Chevron, the Court did not once mention the case. Similarly, a divided Court held in West Virginia that certain caps on carbon emissions fell outside the scope of its authority under the Clean Air Act. The Court again in this case reversed the D.C. Circuit, which considered and declined to apply Chevron deference to the EPA’s carbon caps. However, the majority did not simply ignore Chevron, but advanced a novel doctrine of administrative law that directly contradicts it. This new “major questions” doctrine requires explicit congressional authorization of agency actions with major economic or political significance, a substantial departure from deference to agency interpretations.

The reluctance of the Supreme Court to directly confront Chevron has created a confusing mix of conflicting precedents. A vital function of the Court in the American legal system is to provide clear guidance to lower courts about what the law is and how to apply it. The Court has shirked this duty in its dealings with Chevron deference, handing down rulings that are difficult to reconcile with the easily applicable rule spelled out in Chevron. The major questions doctrine is a recent and striking example. Under this doctrine, courts can use a subjective mixture of history and “significance” to reject the basic premise of Chevron and invalidate any “major” agency rule. Chevron deference and the major questions doctrine are grounded in two fundamentally different views about the authority of executive agencies. It is unclear where one ends and the other begins, so individual judges and their individual biases must reconcile the tension between these doctrines. This is not an effective long-term solution: naturally, these cases will end up before the Court again, and it will eventually be forced to clarify what level of administrative authority is constitutionally permissible.

However, the Court seems unwilling or unable to do so. It refuses to stand by its decision in Chevron, but shies away from overturning it. The Court only invokes the doctrine in around one-quarter of the cases in which Chevron deference appears to apply. By comparison, circuit courts rely on Chevron in nearly three-quarters of disputes over an agency’s interpretation of a statute. While the Supreme Court enjoys a low caseload and can afford to review agency interpretations de novo (anew; without respect to previous decisions), lower courts are not afforded that luxury. They require precedents that can be applied relatively uniformly. The Court acting otherwise complicates the job of judges and leads to disparities between districts and circuits, as courts are afforded leeway in which precedents to apply. In addition, this leads to a growing and irreconcilable conflict between lower courts (which generally adhere to Chevron deference) and the Supreme Court (which treats Chevron, its own precedent, with disdain). Far from uniting the legal system, the Court’s attitude towards Chevron divides it, eroding uniformity by leading to geographic division and undermining efficiency by complicating the dockets of lower courts. 

While the Court appears poised to further gut administrative authority in Sackett v. EPA, the case also presents an opportunity for it to clarify its stance on Chevron. The status quo — in which agencies enjoy deference in lower courts but not the Supreme Court, disparities can propagate between courts, and the Court disregards precedent — undermines the health of the judicial system and the effectiveness of the administrative state. In deciding Sackett, the Supreme Court may further ignore, bury, or subvert Chevron deference. Instead, the Court should use the case as a vehicle to advance a comprehensive doctrine of administrative law that resolves the existing conflict between established and recent precedents.

Jude Farley is a freshman at Brown University, concentrating in International & Public Affairs. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at jude_farley@brown.edu.