Chevron deference (doctrine) - Ballotpedia

Chevron deference, or Chevron doctrine, is an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The principle derives its name from the 1984 U.S. Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[1]

Though it has been applied inconsistently across cases, justices had been reluctant to formally indicate any desire to formally abandon the doctrine. However, since 2015, “[i]f one counts King v. Burwell, all nine justices have at least once signed an opinion explicitly holding that Chevron should not apply in a situation where the administrative law textbooks would previously have said that it must apply.”[2]

The Trump administration was open about its desire to nominate judicial appointees who were, according to a March 2018 New York Times article, "devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations, often without being subject to judicial oversight." The criteria were first applied when nominating Justice Neil Gorsuch to the U.S. Supreme Court. Gorsuch's opposition to the Chevron doctrine made him the model for Trump administration judicial appointments.[3]

What is Chevron deference?

Chevron deference is a doctrine of judicial deference that compels federal courts, in reviewing a federal government agency's action, to defer to the agency’s construction of a statute that Congress directed the agency to administer. The original, two-step Chevron process was first outlined in the 1984 U.S. Supreme Court opinion for Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Chevron's two-step review

The U.S. Supreme Court's 1984 ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. provided federal courts with the following two-step process for reviewing an agency's interpretation of a statute:

Step one

A court must determine whether Congress expressed intent in the statute and, if so, whether or not the statute's intent is ambiguous.

If the intent of Congress is unambiguous, or clearly stated, then the inquiry must end. Agencies must carry out the clearly expressed intent of Congress.
If, however, the intent of Congress is unclear, or if the statute lacks direct language on a specific point, then a federal court must decide whether the agency interpretation is based on a permissible construction of the statute—one that is not arbitrary or capricious or obviously contrary to the statute.

Step two

In examining the agency's reasonable construction, a court must assess whether the decision of Congress to leave an ambiguity, or fail to include express language on a specific point, was done explicitly or implicitly.

If the decision of Congress was explicit, then the agency’s regulations are binding on federal courts unless those regulations are arbitrary, capricious, or manifestly contrary to statute.
If the decision of Congress was implicit, then so long as the agency's interpretation is reasonable, a federal court cannot substitute its own statutory construction superior to the agency's construction.[4][5]

Preliminary review: Chevron step zero

In 2001, the U.S. Supreme Court's ruling in United States v. Mead Corporation narrowed the scope of application for Chevron deference and shed light on a preliminary step in the Chevron process that scholars later described as Chevron step zero. Under Chevron step zero, a federal court asks the initial question of whether or not the Chevron framework applies to the situation. In other words, a federal court must determine whether or not Congress intended for agencies or courts to possess interpretive authority over a statute before embarking on the Chevron two-step process. Administrative law scholar Cass Sunstein coined the phrase "Chevron step zero" in a 2006 article for the Virginia Law Review.[6][7][8][9]

Background: Chevron v. Natural Resources Defense Council

Chevron v. Natural Resources Defense Council

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. was decided on June 25, 1984, by the U.S. Supreme Court. The case concerned a disagreement over a change in the Environmental Protection Agency’s interpretation of a permitting provision of the Clean Air Act Amendments of 1977.[10][11]

The case questioned how federal courts should view a federal agency's interpretation of a statute that Congress directed the agency to implement. The Supreme Court held that federal courts should defer to an agency's interpretation of a statute under these circumstances, unless the court determines that the agency's interpretation is "arbitrary, capricious, or manifestly contrary to the statute."[12][13]

The ruling established the principle of Chevron deference, a practice in which federal courts, in reviewing a federal government agency's action, defer to the agency’s construction of a statute that Congress delegated to the agency to administer.[4]

U.S. Supreme Court opinion in Chevron

Justice John Paul Stevens delivered the opinion for a unanimous six-person court. Justice Stevens began his opinion by clarifying the scope and extent to which a federal court should defer to a federal agency's interpretation of a statute, which the agency itself has authority and obligation to administer. These principles are known today as Chevron deference:[5]

“

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. ...

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. [14]

”

Chevron deference in theory and practice

Support and opposition

Support

Efficiency
In a March 2017 SCOTUSblog post, contributor Eric Citron summarized arguments for and against the application of Chevron deference. According to Citron, supporters assert that the principle allows federal agencies to operate most efficiently. Under Chevron, agencies are able to interpret the statutes that Congress has instructed them to administer and issue the necessary administrative rules, rather than first seeking judicial approval on each statutory interpretation. Citron observed that if an agency were required to seek judicial approval for each regulation, supporters claim that the regulatory process would move at a snail's pace. Similarly, Citron noted a view among Chevron supporters that it would be inefficient for agencies to wait for Congress to legislate each technical detail of a policy. According to Citron, since legislators often struggle to reach compromises on broad policy objectives, Chevron supporters claim that Congress would not be able to quickly agree upon complex, technical regulatory details, such as the definition of "air pollutants" in the Clean Air Act, and pass the necessary legislation for implementation. Chevron deference, supporters contend, allows agencies to efficiently fill in the technical gaps and administer Congress' broad legislative goals.[15][16]

Harvard law professor Adrian Vermeule observed that "for many of the same reasons that agencies are better positioned than courts to interpret the procedural provisions contained in their organic statutes, agencies are also better positioned than courts to assess the marginal costs and benefits of additional increments of procedure for program beneficiaries and regulated actors," contributing to administrative efficiency.[17]

Expertise
In his opinion for Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., Justice John Paul Stevens noted that federal judges are not experts in the field. According to Citron, Chevron proponents claim that agency officials have honed subject matter expertise in their specific area of regulation. Therefore, federal judges should defer to the expertise of agency officials to interpret statutes that Congress has required the agency to administer, given that the interpretation is deemed reasonable. As former Harvard administrative law professor Louis Jaffee observed in Judicial Control of Administrative Action, "Since procedural decisions should be made to serve the substantive task, it follows that expertness in matters of substance [is] relevant to the exercise of procedural discretion."[15][18][17]

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., Justice Stevens remarked:

“

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.[19][14]

”

Delegated authority
In a speech at Duke University School of Law, Justice Antonin Scalia argued that in a case where Congress has expressly delegated the administration of a particular statue to a federal agency, the responsibility to interpret the statute rests with the agency. Thus, where Congress clearly intended to grant authority to an agency, Scalia stated that the courts should defer to the agency's interpretation.[18]

Justice Scalia observed:

“

In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: 'The extent to which courts should defer to agency interpretations of law is ultimately "a function of Congress" intent on the subject as revealed in the particular statutory scheme at issue.' An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires:

(1) Congress intended a particular result, but was not clear about it; or

(2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency.

When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion-i.e., whether its resolution of the ambiguity is reasonable.[20][14]

”

Opposition

Separation of powers
In his opinion for Gutierrez-Brizuela v. Lynch while serving on the United States Court of Appeals for the 10th Circuit, Justice Neil Gorsuch argued that federal agencies exercise an unconstitutional combination of executive, legislative, and judicial functions. According to Gorsuch, the resulting concentration of power in federal agencies increases the power of the executive branch and infringes on the separation of powers between the three branches of government. Gorsuch's argument harkens back to James Madison's declaration in Federalist 47 that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."[21][22]

Justice Gorsuch observed:

“

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.[22][14]

”

In a 2018 opinion piece published by The Hill, attorney Mark Holden of Koch Industries and Freedom Partners Chamber of Commerce argued that Chevron deference violates the separation of powers, weakens the judiciary, and biases court proceedings in favor of the government:[23]

“

You could say that when it comes to administrative-law jurisprudence, lady justice is not blind;

her blindfold is off and she’s winking at the lawyers, who work for the most powerful litigant in the country — the federal government. ... This is not about rejecting the administrative state — it’s about ensuring the judicial branch plays the role it was meant to play under Article III of the Constitution and fully formed in Marbury v. Madison. Federal judges are obliged to decide the law. They should 'defer' to the decisions of unaccountable bureaucrats only when the law and the Constitution are in sync with the bureaucrats’ interpretation.[14]

”

Judicial authority
In The Administrative Threat, Columbia law professor Philip Hamburger argued, "When judges defer to agency interpretations, they depart from their judicial office or duty, under Article III of the Constitution, to exercise their own independent judgement." Thus, according to Hamburger, deference to federal agency interpretations of statute undermines the authority of the judiciary to determine and interpret the law. In City of Arlington v. Federal Communications Commission, Chief Justice John Roberts argued that "we do not defer to an agency’s interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide.”[24][25]

Gorsuch put forth an analogous argument in Gutierrez-Brizuela v. Lynch:

“

Yet, rather than completing the task expressly assigned to us, rather than 'interpret[ing] . . . statutory provisions,' declaring what the law is, and overturning inconsistent agency action, Chevron step two tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty. Of course, some role remains for judges even under Chevron. At Chevron step one, judges decide whether the statute is 'ambiguous,' and at step two they decide whether the agency’s view is 'reasonable.' But where in all this does a court interpret the law and say what it is? When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct.[22][14]

”

Justice Clarence Thomas made similar observations in his concurrence for Michigan v. EPA:

“

Chevron deference precludes judges from exercising that judgment, forcing them to abandon what they believe is 'the best reading of an ambiguous statute' in favor of an agency’s construction. Brand X, supra, at 983. It thus wrests from Courts the ultimate interpretative authority to 'say what the law is,' Marbury v. Madison, 1 Cranch 137, 177 (1803), and hands it over to the Executive. See Brand X, supra, at 983 (noting that the judicial construction of an ambiguous statute is 'not authoritative'). Such a transfer is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies. U. S. Const., Art. III, §1."[26][14]

”

Instability
Since a federal agency's statutory interpretations can vary according to the policy priorities of the president, Gorsuch noted that the practice allows federal agencies to change regulatory interpretations at the whim of the executive, causing regulatory instability for affected individuals and industries.

In his opinion for Gutierrez-Brizuela v. Lynch, Gorsuch observed:

“

Perhaps allowing agencies rather than courts to declare the law’s meaning bears some advantages, but it also bears its costs. And the founders were wary of those costs, knowing that, when unchecked by independent courts exercising the job of declaring the law’s meaning, executives throughout history had sought to exploit ambiguous laws as license for their own prerogative.[22][14]

”

Empirical research about the usage of Chevron

Eskridge and Baer, 2008

In 2008, professors William Eskridge Jr. and Lauren E. Baer studied "all Supreme Court cases decided between Chevron (1983 Term) and Hamdan (2005 Term) in which a federal agency interpretation of a statute was at issue, 1,014 in all." According to the authors:[27]

“

For us, the most striking finding of our study was that in the majority of all cases—53.6% of them—the Court invoked no deference regime at all. This finding is especially notable in light of the fact that we searched hard for signs of deference and counted quite liberally (including Supreme Court reliance on amicus briefs, which formed the bulk of our consultative-deference category). This striking finding is also conceptually significant. It is contrary to both the Court's statements about its own deference practice and the academic literature on the topic. Indeed, in a legal culture where the Court and commentators are obsessed with delineating the distinct domain of Chevron, and arguing over whether the Court's jurisprudence has room for Skidmore, the idea that, more often than not, the Court would not invoke a deference regime is highly counterintuitive.[27][14]

”

The following table from Eskridge and Baer's study shows a breakdown of the various deference regimes cited by the U.S. Supreme Court in agency interpretation cases from the 1983 through 2005 terms:[27]

The Supreme Court's Continuum of Deference
Deference Regime	Form of Deference	Percentage of Cases in Population	Agency Win Rate
No Deference	Ad hoc judicial reasoning	53.6%	66.0%
Anti-Deference	The Court invokes a presumption against the agency interpretation in criminal cases (the rule of lenity) and in some cases in which the agency interpretation raises serious constitutional concerns (the canon of constitutional avoidance)	6.8%	36.2%
Consultative Deference	The Court, without invoking a named deference regime, relies on some input from the agency (e.g. amicus briefs, interpretive rules or guidance, or manuals) and uses that input to guide its reasoning and decisionmaking process	17.8%	80.6%
Skidmore	Agency interpretation is entitled to "respect proportional to its power to persuade," with such power determined by the interpretation's "thoroughness, logic and expertness"; its "fit with prior interpretations"; etc.	6.7%	73.5%
Beth Israel	Pre-Chevron test permitting reasonable interpretations that are consistent with the statute	4.8%	73.5%
Chevron	Reasonable agency interpretations of ambiguous statutes accepted. If the statute is clear, no deference to agency	8.3%	76.2%
Seminole Rock	Strong deference afforded to an agency's interpretations of its own regulations	1.1%	90.9%
Curtiss-Wright	Super-strong deference to executive interpretations involving foreign affairs and national security	0.9%	100.0%

Eskridge and Raso, 2010

In 2010, Eskridge and Connor Raso published a follow up to the Eskridge and Baer study of agency interpretation cases decided by the United States Supreme Court from the 1983 through 2005 terms. Starting with the original Eskridge and Baer data set of 1,014 cases, Eskridge and Raso "excluded agency litigating positions (the agency's position on a case as expressed via briefs to the Court) because they are not entitled to a deference regime under any theory or doctrine. ... We were left with 667 cases in the Eskridge and Baer data set that were potentially eligible for a deference regime under administrative law doctrine."[28]

Eskridge and Raso drew several conclusions from their empirical analysis. First, they argue that the data shows the U.S. Supreme Court does not apply Chevron and other announced forms of deference as binding precedents. Instead, the authors argue that Chevron operates as an optional canon of interpretation that the court applies episodically, not systematically. Eskridge and Raso also identify factors that they found to have an influence on the justices' decisionmaking, including ideological considerations, concerns about the rule of law, and attention to the preferences of Congress and the president:[28]

“

These empirical findings deepen the suggestion of our previous statistical study, that the Court does not apply its announced deference regimes predictably and that those regimes do not operate as a formal constraint on the Justices. Stated doctrinally, our empirical evidence falsifies the proposition that any of the Justices treats Chevron and the Court's other announced deference regimes as precedents strictly binding on them as a matter of stare decisis. Especially with regard to Justice Scalia, who is a fan of both Chevron and stare decisis (and apparently believes that Chevron ought to be followed as a matter of stare decisis), this finding is most surprising.

If formal deference regimes do not drive the Justices' voting in agency interpretation cases, what does? Our empirical analysis finds that ideological concerns influence application of deference doctrine. Justices are significantly less deferential toward agency policies with which they disagree. On the other hand, we also find that the Court's announced policies justifying deference (namely, congressional delegation of lawmaking authority and consistency of agency interpretations over time) significantly influence the Justices' willingness to go along with agency interpretations. This is perhaps our most striking finding from a political science perspective, as most political scientists assume or believe that rule-of-law considerations play no discernible role in judicial behavior. Quite the contrary, we show that they do play a role-though the legal bite of deference regimes is ad hoc and not entirely predictable, much as one would expect if the regimes operated like canons of statutory construction rather than like binding precedents. Also contrary to much conventional wisdom among political scientists, we find that the preferences of the President and Congress seem to influence the Court's application of deference doctrine.[28][14]

”

Chevron and a new period of uncertainty

Once considered canonical judicial doctrine—cited 81,000 times as of 2018 in legal arguments since its first articulation in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.—Chevron deference has been seen by some scholars as "entering a period of uncertainty, after long seeming to enjoy consensus support on the Court.” What has emerged since 2015 has been a period "in which it seems that the Court may be more willing to explicitly refine the doctrine, to limit its application in certain ways, and to articulate new exceptions."[2]

Hailed by Kenneth Starr during the Reagan administration as a Magna Carta for use in federal administrative agency deregulation, Chevron has been a tool for subsequent administrations for deregulatory as well as increased regulatory purposes. The Obama administration, for instance, relied on Chevron in its case for the Affordable Care Act.[29]

Once supported by conservative-leaning legal authorities including Justice Antonin Scalia and Justice Clarence Thomas, Thomas, for instance, has in more recent years reversed his views. He wrote the 2005 opinion in National Cable & Telecommunications Ass'n v. Brand X Internet Services, seen as "one of the Court’s most robust articulations of the commandment for judges to defer to administrative agencies." In 2015's Michigan v. Environmental Protection Agency, however, Thomas' views had changed; his ruling in that case "derided his own prior majority opinion."[2]

Prior to joining the U.S. Supreme Court, Justice Neil Gorsuch declared Chevron to be “no less than a judge-made doctrine for the abdication of the judicial duty.” Gorsuch's opposition to deference regimes became the model for Trump administration judicial appointments.

But opposition to Chevron has materialized along a broader ideological spectrum. According to a 2018 study, “[i]f one counts King v. Burwell, all nine justices have at least once signed an opinion explicitly holding that Chevron should not apply in a situation where the administrative law textbooks would previously have said that it must apply."[2]

There had been uncertainty since the inception of Chevron about why the courts had appeared to apply deference in one case but not another. But because prior to 2015 "no justice had announced any desire to formally abandon Chevron, the dominant streams of administrative law scholarship were reluctant to draw doctrinal conclusions from the justices’ failure to practice what they preached." The future of Chevron is therefore unclear. As one study stated, "despite all the fanfare, it is now well known that the Supreme Court itself applies Chevron inconsistently at best."[2]

Some commentators in 2021 had anticipated that American Hospital Association v. Becerra would provide the Supreme Court with an opportunity to limit Chevron deference. Justice Brett Kavanaugh, however, made no mention of the doctrine in the majority opinion, leading SCOTUSblog analyst James Romoser to question whether "the doctrine may be shunned into oblivion" rather than explicitly overturned.[16]

Chevron and the states

See also: State responses to judicial deference

Chevron deference compels federal courts to defer to a federal agency's interpretation of ambiguous statutes. State-level approaches to judicial deference vary significantly. State courts are not, by virtue of the Chevron doctrine, obliged to defer to state-level administrative agencies. Some state courts, however, have implemented judicial deference to state administrative agencies similar to the deference established federally in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and other Supreme Court cases. Below are some responses to judicial deference made by state governments:

Arizona bill regarding judicial review of state administrative decisions signed into law

Arizona House Bill 2238 (2018): On April 11, 2018, Arizona Governor Doug Ducey (R) signed House Bill 2238 into law. The law amended Arizona Revised Statutes §12-910, which addresses judicial review of administrative decisions. H.B. 2238 instructs courts handling proceedings between an agency and regulated party to decide all questions of law without deference to government agencies, including on matters of constitutional, statutory, and regulatory interpretation. This requirement "applies in any action for judicial review of any agency action that is authorized by law." The law also included two exceptions to this requirement. First, for healthcare-related appeals arising from a specific article of Arizona law, courts are instructed to defer to agencies unless they find that the agency action in question "is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." Second, agencies created pursuant to the Arizona Corporation Commission (the state's utility regulator) are exempt. At the time it was passed, the law was the first of its kind at the state or federal level.[30][31][32]

Proposed Florida ballot measure would prohibit courts from deferring to state agency’s interpretation of rules in legal cases

Florida Amendment 6, Marsy's Law Crime Victims Rights, Judicial Retirement Age, and Judicial Interpretation of Laws and Rules Amendment (2018): This proposed ballot measure is one of eight constitutional amendments referred to the November 6, 2018, ballot by the Florida Constitution Revision Commission (CRC) on April 16, 2018. The CRC bundled three proposed amendments related to trials, judges, and courts into this one ballot measure. If enacted, the third part of the measure would prohibit state courts from deferring to an administrative agency’s interpretation of a statute or rule in legal cases. Instead, the measure would require state courts to interpret statutes or rules de novo. To interpret a statute or rule de novo means to interpret a statute or rule without deference to the legal opinions of administrative agencies or previous judgments.[33]

State legislation related to judicial review and deference

The following table lists bills related to judicial review of and deference to administrative decisions that have been introduced in state legislatures. Bills are compiled and monitored by BillTrack50 and sorted by action history.

Other types of deference

See also: Deference in the context of the administrative state

Below is a list of various deference regimes cited by the U.S. Supreme Court in agency interpretation cases:[27]

No deference: ad hoc judicial reasoning

Anti-deference: the court invokes a presumption against the agency interpretation in criminal cases (the rule of lenity) and in some cases in which the agency interpretation raises serious constitutional concerns (the canon of constitutional avoidance)

Consultative deference: the court, without invoking a named deference regime, relies on some input from the agency (e.g. amicus briefs, interpretive rules or guidance, or manuals) and uses that input to guide its reasoning and decisionmaking process

Skidmore deference: agency interpretation is entitled to "respect proportional to its power to persuade," with such power determined by the interpretation's "thoroughness, logic and expertness"; its "fit with prior interpretations"; etc.

Beth Israel deference: pre-Chevron test permitting reasonable interpretations that are consistent with the statute

Chevron deference: reasonable agency interpretations of ambiguous statutes accepted. If the statute is clear, no deference to agency

Seminole Rock deference (also known as Auer deference): strong deference afforded to an agency's interpretations of its own regulations

Curtiss-Wright: super-strong deference to executive interpretations involving foreign affairs and national security

Noteworthy events

Fifth Circuit declines to apply Chevron deference in bump stock ruling (2023)

The United States Court of Appeals for the Fifth Circuit ruled 13-3 on January 6, 2023, that the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its statutory authority when it adopted a rule banning bump stock devices. Since the rule implemented criminal penalties for those found in violation, the court departed from prior appellate court reasoning on the issue and declined to apply Chevron deference to the agency’s changed interpretation of the underlying statutes.[34][35]

Following guidance issued by President Donald Trump (R) in 2018, the ATF changed its interpretation of the Gun Control Act and the National Firearms Act to find that bump stocks qualify as machine guns and can therefore be prohibited. Gun owners and organizations challenged the rule, arguing in multiple lawsuits that the agency lacked the authority under federal law to issue the rule. Three appellate courts upheld the ban and the U.S. Supreme Court declined to reconsider the decisions—leaving in place a district court ruling that applied Chevron deference to the ATF’s changed interpretation of the law.[34][35]

After a three-judge panel of the Fifth Circuit upheld the ban in December 2019, the en banc court voted to enjoin the ATF rule. The majority concluded in part that the imposition of criminal penalties by a federal agency prompts the rule of lenity to supersede Chevron deference. Judge Jennifer Elrod, writing for the majority, argued that “Chevron deference shifts the responsibility for lawmaking from the Congress to the executive, at least in part. That tradeoff cannot be justified for criminal statutes, in which the public's entitlement to clarity in the law is at its highest.”[34][35]

The ATF had not commented on the ruling as of January 19, 2023.

SCOTUS considers Chevron deference in Medicare challenge (2021-2022)

The following timeline identifies key events in American Hospital Association v. Becerra, a case that concerned applications of Chevron deference.

The case challenged a 2018 U.S. Department of Health and Human Services (HHS) decision to reduce the reimbursement rate that HHS pays certain hospitals for treating Medicare patients. A hospital coalition filed suit, arguing that HHS’ decision in the absence of adequate supporting data violated the Medicare statute. The case questioned whether courts should exercise Chevron deference and defer to HHS’ formulation of Medicare drug reimbursement rates according to the agency’s statutory interpretation.

June 2022: SCOTUS finds HHS violated statutory authority, declines to weigh in on Chevron deference

The U.S. Supreme Court on June 15, 2022, unanimously held that HHS' interpretation of the underlying statute in the case was flawed and that the agency acted in violation of its statutory authority when it reduced the reimbursement rates. Justice Brett Kavanaugh's majority opinion made no mention of Chevron deference.[36]

November 2021: SCOTUS hears oral argument in case that could limit Chevron deference

The U.S. Supreme Court on November 30, 2021, heard oral argument in American Hospital Association v. Becerra, a case that could have affected the scope of agency powers by limiting future applications of Chevron deference.

The court “appeared receptive to the claim that Medicare overstepped its authority when it cut the amount that it paid certain hospitals for drugs they dispensed in their outpatient departments,” observed University of Michigan law professor Nicholas Bagley in an analysis for SCOTUSblog. “None of the justices voiced sympathy with the government’s argument that Congress had precluded judicial review of the question,” Bagley continued, adding that “several of the conservative justices toyed with the possibility of abandoning Chevron deference.”[37]

Professors Richard A. Epstein and Mario Loyola contributed an opinion piece to The Wall Street Journal arguing that a potential ruling narrowing applications of Chevron deference would serve to rein in agency authority. “Chipping away at Chevron won’t by itself solve the larger problem in the rise of the administrative state,” claimed the authors. “But curbing abuses in agency rulemaking by returning to the Administrative Procedure Act would be a good start.”[38]

Staff writer Matt Ford of The New Republic, on the other hand, argued that such a ruling would empower judges to substitute their reasoning for that of neutral policy experts. “That would be a massive shift in the separation of powers—maybe back to Congress and the American people themselves, as Gorsuch and the other justices have suggested, but certainly towards the unelected judges who would be freed from the burden of deference to, well, anyone,” wrote Ford.[39]

Sixth Circuit considers applications of Chevron deference in criminal contexts (2021-2022)

The following timeline identifies key events in a 2021 lawsuit, Gun Owners of America v. Garland, a case that concerned applications of Chevron deference to agency interpretations of statutes that carry criminal penalties.

October 2022: SCOTUS declines to hear case

The Supreme Court issued an order on October 3, 2022, declining to hear Gun Owners of America v. Garland. The order did not provide a reason for the decision.[40]

December 2021: Judges split on appropriateness of Chevron deference in criminal contexts following rehearing en banc

A majority of the judges of the United States Court of Appeals for the Sixth Circuit voted to grant en banc review of this case and vacate the previous decision on June 25, 2021. The full court’s decision was evenly divided following arguments on October 20, 2021. Eight judges voted to affirm the decision of the district court and eight judges voted to reverse the decision. As a result of the split decision, the district court’s ruling was affirmed on December 3, 2021.[41]

March 2021: Sixth Circuit three-judge panel limits applications of Chevron deference in criminal contexts

A divided three-judge panel of the United States Court of Appeals for the Sixth Circuit on March 25, 2021, limited applications of Chevron deference in the criminal context in its Gun Owners of America v. Garland decision, which invalidated the Trump administration’s bump stock ban.[42][43]

The court declined to apply Chevron deference to the Bureau of Alcohol, Tobacco, and Firearm's statutory interpretation supporting the agency’s rule that allowed bump stocks to be classified as machine guns. The court held that Chevron deference did not apply because the law in question was a criminal statute. The court also found that the district court should have permitted the plaintiffs’ request for an injunction to block the rule.[42][43]

“Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns,” wrote Judge Alice Batchelder in the opinion, “we hold that an administering agency's interpretation of a criminal statute is not entitled to Chevron deference.”[42][43]

Judge Eric Murphy joined Judge Batchelder in the opinion. Judge Helene White dissented.[43]

Judge White disagreed with the court’s limitation on Chevron deference. “The Supreme Court has applied Chevron in the criminal context in three binding decisions—Chevron itself, Babbitt, and O'Hagan—and has never purported to overrule those cases,” she wrote.[42][43]

The court remanded the case to the district court and eliminated the possibility of a nationwide injunction by limiting any subsequent injunctions to the four states within the Sixth Circuit.[42][43]

External links

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