Political Attorney Analysis of the Supreme Court Overturning Chevron Doctrine; reinforces Skidmore deference 

For decades, the Supreme Court’s holding in Chevron U.S.A. v. Natural Resources Defense Council defended the requirement that a court reviewing agency action should defer to an interpretation of an ambiguous statute by the agency empowered with issuing regulations under that statute so long as the agency’s interpretation is a “permissible construction.” In Loper Bright Enterprises v. Raimondo, decided on June 28, 2024, the Supreme Court decisively struck down this practice.  

The Court originally explained Chevron deference as reliance on the advice of the subject-matter experts, e.g., the personnel working at the agency that are allegedly subject-matter experts of their respective issues areas. While this is entirely sound as a basic premise, in practice, it had led to some questionable outcomes as regulatory agencies have wielded vast powers in unusual ways.  

In sum, the “Chevron doctrine” broadly expanded the power of executive agencies over the past 39 years. In recent years, there had been calls for curtailing this doctrine to limit some of the wild outcomes that the doctrine forced over the years. Notably, Supreme Court Justices Thomas and Gorsuch have called for its reversal. In 2022, when the Court passed on a Chevron related case, Justice Gorsuch wrote that, “At this late hour, the whole project deserves a tombstone no one can miss. We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.” Expressing a similar sentiment, Justice Thomas wrote in 2020 that, “Chevron is in serious tension with the Constitution.” Even David Doniger, the lawyer who argued for the National Resources Defense Council in 1984, has stated that the Chevron doctrine has “been in a coma for a while.”  

 In 2022, the Supreme Court took up Loper, where it was tasked with determining whether the National Marine Fisheries Service (“NMFS”), which is part of the U.S. Department of Commerce, had the power to require the fishing industry to pay for monitors that are required to be part of their crews. In short, the NMFS created a regulation that required the fishing industry to pay for the government monitors that are required to monitor their conduct. This case presented a direct question whether the NMFS’s interpretation of the law it was empowered with administering was due deference from the Supreme Court. If it was entitled to deference, then the regulation would likely have been upheld. The Supreme Court, however, determined that it was not entitled to Chevron deference and remanded the case back to the lower courts for proceedings consistent with its decision overruling Chevron.  

 Now that the Court has overturned Chevron, it will likely change how agencies regulate and potentially change how Congress legislates. Currently, Congress can create broad guidelines that delegate the technical details of the lawmaking process to the administrative agencies that are responsible for administering the law. The lower courts will be required to now grapple with how to resolve this case without relying upon Chevron.  

 This does not mean that the NMFS’s input will be disregarded by those courts or that the agency experts will not be able to weigh in on the proper resolution of the case. Indeed, the Court specifically pointed to a different form of deference created in Skidmore v. Swift & Co., 323 U. S. 134, 140. Utilizing Skidmore deference, a reviewing court will still consider the agency’s experience, opinion, and informed judgment, and it should give it due consideration given the agency’s unique position, but it will not be bound by them and may consider them alongside other information that is available to the court. This standard is considerably more in line with a reasonable approach to considering the merits of a case.  

 The true impact of Loper is yet to be seen as lower courts begin to implement this decision and agencies begin to alter their regulatory habits. In short, Loper is a step towards limiting the broad powers of agencies and returning the authority of judicial review to its proper place and allowing it to include proper considerations. This decision, however, is unlikely to upend the regulatory process as the Court was careful to reinforce Skidmore deference, which still requires consideration of an agency’s interpretation and expertise on issues that are before the courts.