WASHINGTON, DC – Following oral argument at the U.S. Supreme Court this morning in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo, two cases in which the Court is considering whether to alter or overrule the Chevron doctrine, a legal framework that instructs judges to defer to agencies’ reasonable interpretations of ambiguous laws, Constitutional Accountability Center Appellate Counsel Miriam Becker-Cohen issued the following reaction:

There was a lot of discussion at the Supreme Court this morning about the merits of Chevron deference as a matter of policy, but the attorneys arguing that Chevron should be overruled advanced only two legal arguments for overruling the case: that it is inconsistent with separation of powers principles, and that it is inconsistent with the Administrative Procedure Act, or APA. Neither argument has any merit.

General Prelogar soundly refuted the first argument, explaining that deferring to agency interpretations of ambiguous questions of law in fact effectuates separation of powers principles. As Justice Kagan put it, “Congress does not want courts making policy-laden judgments.” In other words, Chevron ensures that statutory delegations are honored, and it prevents judges from becoming “uber legislators,” as Justice Jackson explained. These principles are core to Articles I and III of the Constitution.

As for Chevron’s consistency with the APA, General Prelogar was right when she said that Section 706 has “never been understood at any time” to “dictate a standard of review for questions of law.” As we explained in our amicus brief on behalf of scholars of administrative law and the APA, the APA instructs “the reviewing court” to “decide all relevant questions of law,” but it does not dictate the analytical framework that judges should use to do so. A court can answer a “question of law” in many possible ways, including by considering an agency’s answer and adopting it if it is reasonable. Indeed, that is precisely how the Supreme Court decided questions of law immediately before and after the APA was enacted. Perhaps that is why those opposing Chevron pointed to no evidence whatsoever that the APA altered that approach.

If the Court were to overrule Chevron, it would be nothing less than a massive judicial arrogation of power that neither the APA nor the Constitution demands. The Court should not do so.

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Resources:

Case page in Loper Bright Enterprises v. Raimondo: https://www.theusconstitution.org/litigation/loper-bright-enterprises-v-raimondo/

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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