In 1984, the United States Supreme Court decided Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (“Chevron”). The “Chevron doctrine” or “Chevron deference” has remained among the most cited and controversial legal doctrines in modern American jurisprudence. Today, 40 years later, the Supreme Court appears poised to overturn Chevron, ushering in a profoundly different regulatory environment.
What is the Chevron doctrine?
The Chevron doctrine is a two-pronged test applied by courts in disputes over whether an agency has exceeded its authority to enforce the statutes the agency administers. The first prong examines whether the statute in question directly addresses the matter in question. If the statute addresses the issue, the court gives effect to the clear intent of Congress, and the analysis ends. When a statute is ambiguous, however, as many federal statutes are, the Chevron doctrine requires the court to defer to the agency's own interpretation of the statute, provided only that the interpretation is subjectively "reasonable."
Proponents of the Chevron doctrine argue that federal agencies are the experts in their respective realms and are thus better suited to develop the requisite policies necessary to implement congressional intent, especially in complex or expansive areas of law. They contend that federal agencies need flexibility given the breadth and complexity of many statutory frameworks. The Federal Meat Inspection Act, as well as the Food Safety Modernization Act, are two examples of complex laws for which USDA and FDA, respectively, should be granted deference in interpreting and implementing. Indeed, implementing these laws would take decades if USDA and FDA were not granted deference in interpreting congressional intent.
Conversely, critics argue that the doctrine grants too much power to unelected bureaucrats and regulators while undermining the judiciary’s important role in checking executive and administrative power. Moreover, they contend that the Chevron doctrine actively encourages regulatory overreach by incentivizing federal agencies to interpret statutes as expansively as possible (within subjective “reason”), knowing the courts have little choice but to side on complex issues with the agencies.
The herring case: Is Chevron about to be pickled?
On Jan. 17, 2024, the U.S. Supreme Court heard oral arguments in two cases that could lead to Chevron’s demise. The cases are brought by herring fishers who argue that the National Marine Fisheries Service exceeded its regulatory mandate. For decades, fishing boats have carried governmental observers who oversee operations related to conservation, sustainability, waste, and regulatory compliance. In 2020 however, the Trump administration amended the regulation, requiring fishers pay for the onboard observers at a cost of more than $700 per day.
With arguments complete, and as we await a decision, the Supreme Court could approach the case in a number of different ways. It could uphold Chevron, resulting in the continuation of the status quo. It could strike down the Chevron case, leading to extraordinary change in how courts rule on issues of ambiguity in administrative law. Or it could meet in the middle and make some sort of incremental change.
Notably, however, at least four of the nine current justices — including Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas — have already sewn doubt about the legitimacy of Chevron. Gorsuch has called for it to be struck down. Given the justices’ apparent disdain for the 1984 Chevron decision, it is entirely possible they will use this case to overrule the Chevron doctrine. If that happens, it will likely result in a flood of additional legal challenges to extant regulatory interpretations on a myriad of issues, including issues impacting the meat and poultry industries.
Depending on how these issues are collectively resolved, the existing regulatory framework and division of power between regulators and regulated could shift enormously in the years ahead. Moving forward, we can likely expect the Supreme Court to issue its final decision, as we wait with bated breath, sometime this summer.
