“Chevron deference” and the end of Chevron deference has been all over the news since the United States Supreme Court published its June 28, 2024 decision in Loper Bright Enterprises v. Raimaondo, Secretary of Commerce. As with most media coverage of the law, most of the reporting I’ve seen has been overly simplistic at best, and downright deceptive at worst. Politically, the end of Chevron is described by one extreme as “the end of democracy!” and by the other as a revival of the rule of law. Both sides are correct in that the end of Chevron will mean dramatic changes to how Americans are governed. So, I thought it would be helpful for our readers, and challenging for me, to see if I could give a plain English explanation of just what the Supreme Court actually did in this case. (And when I say plain, I mean PLAIN: oversimplified and severely edited for brevity and clarity. This article is not a history thesis or a memorandum of law.)
How I thought government worked (before I went to law school).
We all learned in elementary or junior high civics that a fundamental element of American government is “the separation of powers,” meaning that, unlike the kingdoms of Europe, or the empires of ancient times, the powers of the American government would be divided among three separate branches. The legislative branch (the House and Senate) would create the law, but would not enforce it, and would not interpret it. The executive branch (the President and appointed officers) would enforce the law but would not make the law and would not interpret it. The judicial branch (the courts) would interpret the law, but would not make or change it, and would not enforce it.
What is Administrative Law?
For the first 125 or so years or so of the Federal Government, things functioned more or less as we were told in elementary civics. Then came the “progressive era.” In the late 1800’s and early 1900’s, politicians began openly advocating for a more “active” government, which would exercise more control over the growing industrial economy. To keep up with the rapid pace of industrial development, the old system of laws being created by one branch and enforced by another was simply too slow and too cumbersome. Meanwhile, legislators wanted to control and regulate minute details of American life, but didn’t want to be bothered with drafting the detailed legislation themselves.
The Argument for Administrative Law and Deference.
(While Chevron is about Federal law, I’ll use two examples from state law simply because they are probably more familiar to the reader.)
The State legislature knew that Minnesota’s natural resources were being depleted. Specifically, fishermen were catching and keeping all the fish they possibly could, and fish populations were being destroyed. The legislature knew that one of the solutions was to make it illegal to keep more than a certain number of fish. The legislature could pass a statute setting a limit on fish. They could bring in experts, talk to their constituents, and try to find a number that both worked to sustain the walleye population, and made fishermen and conservationists happy.
This of course would probably take an entire legislative session to assemble and digest the relevant data and come up with a proper limit. And once established, it might need to be changed. Maybe the limit was too high, or too low; or maybe what we actually need are different limits for different lakes. To adjust over time, the limit would have to be debated every year. And of course the legislators themselves are not experts in biology, fishing, or law enforcement; so the chance of them coming up with the correct limit is quite small.
Instead, the legislature can pass a very broad statute without much detail. Imagine they call it simply “The DNR Act” and it says something like “(1) We hereby establish the Department of Natural Resources. (2) The Department will hire experts and study the lakes and fish. (3) The Department’s experts shall set limits on the number of fish people can harvest, so as to maximize the number of fish harvested by recreational anglers in the long run.” This is called an “enabling statute” because it empowers the executive branch (the DNR is part of the executive branch) to make law. The laws made by the executive branch are called “rules” rather than “statutes” but regardless of the label, they have the force of law and can have criminal penalties.
This makes sense on a certain level. Most of us don’t want our legislators spending every session debating next year’s walleye limits, and we want those limits set by people who understand biology and fishing.
Another example is Workers’ Compensation. The Minnesota Legislature passed Chapter 176 which builds a framework for the system, but leaves many details for the experts in the Department of Labor and Industry to fill in. For example: should a grade 2 acromio clavicular separation (a shoulder injury) give a worker a 3 percent disability rating or 6 percent? MN DOLI decides that, not the legislature.
The Workers’ Compensation system actually takes things a step further. Not only does the executive branch engage in lawmaking, it also has its own court system. Workers’ Compensation cases are not tried by the judicial branch. They are tried by Administrative Law Judges in Administrative hearings. The basis for this is that it allows decisions to be made by specialists in this area rather than by a district court judge who may have no experience in this unique area of law. As to Workers’ Compensation, rules are made, enforced, and interpreted all within the same (executive) branch.
Hundreds of state and federal administrations have such systems that empower (presumptive) experts in each field to make rules, enforce those rules, and adjudge disputes about those rules and their enforcement.
Interaction between Administrative Law and the Judicial Branch.
Fortunately, there are limits. None of these administrative law systems are completely independent of the actual judicial branch. To use our examples above, if the DNR’s rule-makers declare that one may not keep more than 6 walleye, and if the DNR’s enforcers accuse a person of keeping 7 walleye, the matter will be tried to a judicial branch court. Even with Workers’ Compensation where cases are first tried by the executive branch, parties can ultimately appeal to the judicial branch.
Deference
So at some point, judicial branch courts are in a position to evaluate the rules, enforcement actions, and adjudication of these administrative agencies. The question then arises—should judicial branch courts “defer” certain things to these administrative agencies because they are the experts? This question is particularly important when lawsuits are about the validity of the rules themselves.
For example, let’s say I get ticketed for keeping 7 walleye in a day, in violation of the 6 walleye limit. I challenge the ticket. I admit that I kept 7 walleye in a single day, but I argue that the DNR’s rule is illegal, because (according to the simple language in my hypothetical enabling statute above) the DNR was supposed to “set limits on the number of fish people can harvest, so as to maximize the number of fish harvested by recreational anglers in the long run” and I argue that a limit of 7 would actually do that. Let’s further say that I actually have some good evidence on my side; maybe I bring in 5 biologists who testify that if we were allowed to keep 7 fish, the population would not be affected and 6 instead of 7 would actually accomplish the goal of the legislation—more harvested fish.
In that case, should the court treat me and the DNR as equals and have a week-long trial over whether 6 or 7 is the best limit? Or should the court “defer” to the DNR and simply say “the DNR set the rule using the best data available to it, and they have the power to do that, and the rest of us need to follow the rule.”? Most of us would say the latter and courts have traditionally agreed. The important point here is that in this case we are arguing about facts; and courts have long deferred to administrative agencies on questions of fact. Neither Chevron, nor Loper Bright change any of that.
Let’s change the story a bit. Let’s say I find out that when the DNR made the 6-walleye rule, it calculated that a limit of 8 would actually “maximize the number of fish harvested by recreational anglers in the long run.” Let’s say then that the DNR’s bald eagle expert sent a memo to the rule-makers saying, “eagles also eat walleye, and a limit of 8 won’t leave enough walleye for the eagles.” Let’s further say that the rule-makers specifically said, on the record, that preserving fish for the eagles was why they made the limit 6 instead of 8. Should the judicial branch court “defer” to the DNR on this issue? Remember, the legislature gave them only one criterion to use in setting limits—maximizing the harvest for recreational angers—and instead they used a different criterion. Even though fish for eagles might be an important goal, the courts have traditionally NOT deferred to administrations where they have gone beyond what the legislature told them to do. Again, neither Chevron, nor Loper Bright change any of that.
Now let’s change the story again to make it a closer call. Let’s say that when the legislature passed the DNR Act 75 years ago, it wasn’t just worried about declining numbers of walleye, it was also worried about declining numbers of turtles. (But the hypothetical enabling statute above is still the same—it says “fish” not “turtles.”) And 74 years ago, when the DNR made its first walleye limit, it also put a limit on turtle harvest, and that limit has been in place for 74 years. And this summer, I harvest more than the limit of turtles and get a ticket. I challenge the ticket on the basis that “the statute says ‘fish’ not ‘turtles’ and a turtle is not a fish. So the DNR has no power to make any rule about turtles, so the rule is illegal, so I didn’t violate the law.” The DNR responds: “The legislature gave us the power to enforce and interpret the DNR Act. When the legislature wrote “fish” it meant all aquatic creatures that people fish for. We have the record from the debates about the bill and some of the legislators actually mention turtles and even clams in their speeches. We’ve consistently interpreted and applied the DNR Act that way for 74 years and we’re the experts.” Should the judicial branch defer to the executive branch on this? The meaning of the statue is a question of law.
And remember, deference isn’t directly about who wins and who loses. Even without deference, the DNR still might be able to prove its case. But with enough deference, the executive branch wouldn’t even have to prove its case; the law would be what the DNR says it is because they are the experts. This is where Chevron, and Loper Bright matter.
Chevron Deference.
Which brings us to the Chevron case from 1984. (Again reader, I’m editing heavily here for brevity and clarity.) In Chevron, the Federal Legislature had passed the Clean Air Act which (among other things) said that companies could not do anything to increase pollution from a “stationary source” of pollution.
Chevron had a refinery which, of course, made pollution. The pollution came out of the 10 smokestacks attached to the refinery. Two of the smokestacks were old and their filters were worn out. The engineers at Chevron did some math and science stuff and figured out that the refinery would make less pollution if it shut down the two old smokestacks and routed the exhaust through the other 8. So the refinery would produce less total pollution; but the remaining 8 smokestacks would each individually produce more pollution than they were before.
Whether or not Chevron could do this depended on what the legislature meant by “stationary source.” Is there 1 source in this story—the refinery—or are there 10 sources—each smokestack? If the refinery is the only source then Chevron can do this because they are reducing the pollution from the source. If the stacks are the sources, then they can’t do this because all 8 remaining stacks would produce more pollution than they were before.
The Environmental Protection Agency—the agency tasked with enforcing the Clean Air Act—interpreted the Clean Air Act to mean that the refinery was a single source. It’s also important to note that the EPA had been interpreting and applying the law this way for many years. An environmental protection group sued on the theory that the EPA was mis-interpreting the CAA and in fact each smokestack was a source. You can probably think of many reasons to consider the refinery a single source, or to consider each smokestack a source. But the point of Chevron deference was that those arguments didn’t really matter.
In the 1984 case of Chevron v. NRDC, the United States Supreme Court essentially said that as long as the administrative agency has some reasonable explanation for its interpretation, then its interpretation is correct, and courts won’t even entertain an argument that the agency was wrong. In their words:
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.
When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: “Our Constitution vests such responsibilities in the political branches.”
This justification has many glaring holes in it:
“Judges are not experts in the field [of environmental protection.]” Well, sure. But that applies to nearly everything a judge does. A single judge in a single week will hear cases about car accidents, murder, child support, a farm trust, and a corporate merger. No one thinks a single judge is expert in all of these things, yet they still apply their judgment as superior to the people involved in the case. And so what if one party is an expert in the field at issue and the other is not? That doesn’t mean that the expert automatically wins. If one party is an expert, they probably made a good decision, and they probably have the facts on their side, and they probably will win the case; but they don’t automatically win.
“[A]n 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.” (In other words, the Court thought it was important that, rightly or wrongly, the EPA had been interpreting the statute as they did for a long time.) Do the rest of us get to do that? Can an employer win a discrimination case simply because the discriminatory policy has been in place for a long time without challenge? Can a manager continue a discriminatory policy because her predecessor did things the same way?
“In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.” Huh? Isn’t that the point of judges—to have controversies decided by a neutral third party? Again, could an employer say “listen, judge, I know you think I fired the plaintiff in retaliation for filing a work comp claim; and I know you think that’s a bad thing, but you have no dog in this fight, and I do. You need to respect my legitimate policy choices.”? If we citizens don’t get that deference, why should federal agencies get it?
The end of Chevron.
With the June 28, 2024 decision in Loper Bright v. Raimondo, Chevron deference is no more. Going forward, administrative agencies will be treated like the rest of us. When there is ambiguity in the statutes they are fighting over, the courts will fill in the blanks, not the agencies themselves. The Court reasoned that when it comes to interpreting statutes and applying independent judgment, judges are always the best experts.
How does Administrative Law affect Employment Law?
Minnesota DEED, DOLI, DHR; the Federal EEOC, DOL, OSHA, and on and on. These are all administrative agencies that engage in making rules, enforcing them, and sometimes adjudicating them. None of the rules put out by these agencies will be immediately repealed because of the Loper Bright v. Raimondo decision. However, going forward, any employer fighting these agencies over the validity of their rules will be on a much more even playing field. Employers will still be fighting an agency with unlimited resources, but at least they won’t walk into court as the presumptive loser. The impact of Loper Bright v. Raimondo will probably take decades to be fully seen. Over time, agencies will have their more ambitious rules overturned. This will (hopefully) encourage them to take a much narrower view of their statutory authority and we may see fewer and narrower rules.
Conclusion
As you can see from my writing, I’m glad Chevron deference is dead and I agree with the current court’s reasoning. For those worrying about what the end of Chevron will mean (or for those arguing with someone who thinks it’s “the end of our democracy!”) consider this: Chevron deference wasn’t created until 1984. Our republic survived just fine for a couple of centuries without Chevron deference; we’ll be fine.
