In the 1984 case Chevron v. Natural Resources Defense Council, the Supreme Court held that courts should defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is reasonable. Known as Chevron deference, this framework has guided judicial review of agency decisions for decades, striking a balance between agency expertise and congressional guardrails.

Now, a group of commercial fishing companies, backed by a cadre of conservative legal groups, asked the Supreme Court to reconsider Chevron. They challenged a National Marine Fisheries Service (NMFS) rule that requires the fishing industry to pay for monitors. Federal law is clear that the NMFS can require monitors to collect data on fishery conservation and management, but it does not state whether industry or the government must pay for the monitors. The Court of Appeals for the DC Circuit, relying on Chevron, held that the law was ambiguous and that the agency’s decision to require the industry to pay for its monitors was reasonable. The fishing industry asked the Supreme Court to reverse that decision and overrule Chevron. Among other things, the industry argued that Chevron deference is inconsistent with a landmark statute passed in 1946 called the Administrative Procedure Act (APA).

On September 22, 2023, CAC filed an amicus brief on behalf of scholars of administrative law and the APA, refuting that argument by demonstrating that deference to agencies on questions of law is entirely consistent with the text and the history of the APA.  Our brief made three main points.

First, our brief explained that the text of the APA is ambiguous on the central question of whether courts may defer to agency interpretations of law. Section 706 of the APA states that “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.” “Deciding” a question of law does not mean that a court must ignore the agency’s interpretation. A court can answer a legal question in many possible ways, including by considering an agency’s answer and adopting it if it is reasonable. Merely requiring courts to “decide all relevant questions of law” does not dictate the analytical framework judges must use to do so.

Second, our brief demonstrated that controlling law in the period immediately before the APA’s enactment embraced deference to agency interpretation of ambiguous statutes, often describing a review process that sounded strikingly similar to Chevron. Critically, there is absolutely no historical evidence that Congress altered that approach through the APA. Accounts from the legislative record, such as reports from congressional committees and the Attorney General’s office, repeatedly characterized the APA as a restatement of the current state of the law with respect to judicial review of questions of law. To the extent that any of the key players involved in passing the APA thought it did anything to change the status quo in that arena, there is simply no evidence of it. This is especially notable given that there is extensive historical evidence that the APA did alter judicial practice with respect to the standard of review of agencies’ factual determinations.

Third, our brief showed that authoritative interpreters of the APA—including the Supreme Court itself—did not view the APA as altering the standard of review for questions of law in the wake of the statute’s enactment. The Supreme Court continued to cite pre-APA cases articulating a deferential standard of review, sometimes using even more explicitly deferential language than in the past. Administrative law commentators also overwhelmingly perceived no change to the standard of review.  Most notably, the Attorney General’s Manual on the APA, an explanatory document published almost immediately after the APA’s enactment, stated that Section 706 “restates the present law as to the scope of judicial review.” And almost without exception, administrative law scholars continued to emphasize the importance of pre-APA cases for understanding the scope of judicial review.

As our brief explained, the Court should have rejected this challenge to Chevron deference. Nothing in the text of the APA precludes such deference. And the historical context overwhelmingly demonstrates that Congress did not intend to upset the state of the law on that issue, which had grown increasingly solicitous of agencies’ legal interpretations in the years leading up to the APA’s enactment.

In June 2024 the Court overturned Chevron in a 6-2/6-3 decision (Justice Jackson was recused from Loper Bright, though she joined the dissenting justices in the consolidated case, Relentless, Inc. v. Department of Commerce).

In an opinion by Chief Justice Roberts, the majority held that the deference to agencies required by Chevron was inconsistent with the Administrative Procedure Act. In the Court’s words, “under the APA [courts] may not defer to an agency interpretation of the law simply because a statute is ambiguous.” The Court thus determined that courts, rather than agencies, are best equipped to resolve statutory ambiguities, even those that demand technical subject matter expertise. However, notably, it left open numerous scenarios in which deference to agencies is still permitted or even required, including when statutes expressly or implicitly delegate discretion to agencies, when an agency interpretation has the “power to persuade” under what is known as Skidmore deference, and when an agency interprets facts as opposed to statutory provisions.

Justice Kagan sharply criticized the majority’s ruling in her powerful dissent, calling the decision “a bald assertion of judicial authority” and “grasp[] for power.”  Relying heavily on the textual and historical analysis of the APA in our brief—including through direct citation to the work of many of our signatories—she explained why the majority misunderstood the APA’s original public meaning and conducted an analysis “grounded on air.”  Summing up her disdain with the majority’s outcome-driven reasoning, she declared that “it is impossible to pretend that [this] decision is a one-off, in either its treatment of agencies or its treatment of precedent.”