An authority on Chevron deference, Kent Barnett focuses his research on the separation of powers in the federal administrative state, administrative adjudication and judicial review of agency actions. Below he breaks down Chevron deference and what the U.S. Supreme Court’s decision to hear Loper Bright Enterprises v. Raimando during the October 2023 term could mean.
Barnett, a member of the University of Georgia School of Law faculty since 2012, presently serves as associate dean for academic affairs and holds a Hosch Professorship.
What is the Chevron deference doctrine?
The Chevron deference doctrine requires courts to defer to reasonable agency interpretations of ambiguous statutes that an agency administers.
How has Chevron deference affected judicial decisions?
- Research shows that the doctrine appears to influence judicial outcomes on regulatory matters of national importance.
An empirical research study found a 25-percentage-point difference in agency-win rates on judicial review when federal Courts of Appeals applied Chevron than when they did not, based on all published federal Courts-of-Appeals cases that cited Chevron over an 11-year period.
Professors Kent Barnett (University of Georgia) and Christopher Walker (University of Michigan) created the most comprehensive dataset to date on Chevron deference in the federal Courts of Appeals and published their results in 2017.
- Chevron can be helpful in muting judges’ ideological decision making as found in an empirical study.
- The research supports the theory that Chevron deference powerfully, even if not fully, constrains ideology in judicial decision making—something that may be especially important as judges become or are perceived as more ideological on both the right and the left.
- Conservative judicial panels are up to 23% more likely than liberal panels to agree with conservative agency interpretations under Chevron deference and up to 36% more likely than liberal panels to agree with conservative agency interpretations under a lesser form of deference.
- There was a 25% difference across the ideological spectrum for review of liberal agency interpretations under Chevron (with liberal panels being more likely than conservative ones to agree) and a whopping 63% difference without Chevron
Professors Kent Barnett (University of Georgia), Christopher Walker (University of Michigan) and Christina Boyd (University of Georgia) analyzed how conservative and liberal appellate panels reviewed conservative and liberal agency statutory interpretations and published their results in 2018.
Why is the application of Chevron deference being questioned?
There is wide variability as to when federal Courts of Appeals have applied Chevron deference, likely because of confusing signals that the United States Supreme Court provided on when the doctrine should apply.
What are likely outcomes from a U.S. Supreme Court decision in Loper Bright Enterprises v. Raimando?
- It will do one of two things: overrule the Chevron doctrine or narrow the doctrine and thereby provide more guidance to lower courts on when it should apply.
- Of those two options, I would expect the court to choose the latter option if for no other reason than the justices have signaled divergent views on whether they seek to overrule or narrow Chevron in past opinions.
Why would the U.S. Supreme Court overrule the Chevron doctrine?
- The Supreme Court has not relied upon Chevron deference for more than five years.
- At least two conservative justices—Justice Thomas and Justice Gorsuch—have indicated that they would hold that Chevron deference violates Article III by preventing courts to say what the law is.
Barnett believes that the Article III argument is very undertheorized and inconsistent with various stands of the court’s existing Article III precedent. It is also striking because many originalists supported Chevron deference when it was developed by conservative lawyers, including Justice Antonin Scalia, in the 1980s. Only once Republicans and conservative think tanks began to question federal regulatory power and Chevron deference did conservative justices start suggesting that it should be limited or overruled.
- Other justices—namely, the Chief Justice, Justice Alito, and Justice Kavanaugh—have suggested a much more limited place, applying to only matters where Congress has made its intent clear that Chevron should apply to specific issues or only in the very rare circumstance in which a statute is ambiguous.
Is a plurality opinion in the case likely?
Based on what appears to be a lack of agreement among the conservative justices and based on Justice Jackson’s recusal, I would not be surprised if the court issued only a plurality opinion, which would likely provide as much guidance as scholars and lower courts would like and may lack the staying power of a majority decision by a full complement of justices.
What happens if Chevron deference is overruled?
Notably, foreign jurisdictions—including Canada, the United Kingdom, Italy, and Germany—have all turned away from doctrines similar to Chevron deference, largely based on notions that courts decide legal matters. The fact that these countries do not have something similar to Chevron deference and still operate large and well-functioning bureaucracies suggests that the federal government will not grind to a halt even if the court abandons Chevron deference and agencies lose more often in court.
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