Today’s blog entry discusses the oral argument in two cases heard by the United States Supreme Court last week. Both of which asked the question of whether Chevron deference will continue to be a viable doctrine. We know from reading cases over the years, cases the various justices were involved in while on the various circuit courts, as well with their writings that a majority of the Supreme Court exists to get rid of Chevron deference as we know it. The question is what will replace it. Predicting what this Supreme Court will do is a bit of a fools errand, but it does seem clear that the most likely outcome will be what a few of the Justices referred to as “Kisorizing,” Chevron. The facts of the cases the Supreme Court had before are pretty straightforward. Basically, large fisheries by statute pay a certain small percentage for investigations of their boats. However, by final regulations smaller fisheries pay 10 times more than that. The small fisheries challenged the distinction. The oral argument heard last week concerned final regulations whereas Kisor concerned agency interpretation of regulations. As usual, the blog entry is divided into categories and they are: Kisor recap; where did the problem start; and what are you likely to see from the Supreme Court. Of course, the reader is free to focus on any or all of the categories.



Kisor Recap


In explaining how courts need to deal with agency interpretation of regulations after Kisor, I lifted the below statements from Kisor. For a deeper dive into that opinion, check out the blog entry discussing Kisor v. Wilkie, here.


  1. For deference to apply to an agency interpretation, the regulation must be genuinely ambiguous after a court has resorted to all the standard tools of interpretation.
  2. Deference is not warranted where a court concludes that the interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment.
  3. Only when the legal toolkit is empty and the interpretive question still has no single right answer does the judge get to conclude that deference applies.
  4. The deep dive includes carefully considering the text, structure, history, and purpose of the regulation as if the interpretation of the regulation did not exist.
  5. Even if genuine ambiguity exists, the interpretation of the regulations still has to be reasonable.



Where Did the Problem Start


The whole problem with Chevron deference seems to have started with dueling footnotes, shown immediately below, in the Chevron opinion, here.




[Footnote 9]

The judiciary is the final authority on issues of statutory construction, and must reject administrative constructions which are contrary to clear congressional intent. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27454 U. S. 32 (1981); SEC v. Sloan, 436 U. S. 103436 U. S. 117-118 (1978); FMC v. Seatrain Lines, Inc., 411 U. S. 726411 U. S. 745-746 (1973); Volkswagenwerk v. FMC, 390 U. S. 261390 U. S. 272 (1968); NLRB v. Brown, 380 U. S. 278380 U. S. 291 (1965); FTC v. Colgate-Palmolive Co., 380 U. S. 374380 U. S. 385 (1965); Social Security Board v. Nierotko, 327 U. S. 358327 U. S. 369 (1946); Burnet v. Chicago Portrait Co., 285 U. S. 1285 U. S. 16 (1932); Webster v. Luther, 163 U. S. 331163 U. S. 342 (1896). If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law, and must be given effect.



Footnote 11]

The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. FEC v. Democratic Senatorial Campaign Committee, 454 U.S. at 454 U. S. 39Zenith Radio Corp. v. United States, 437 U. S. 443437 U. S. 450 (1978); Train v. Natural Resources Defense Council, Inc., 421 U. S. 60421 U. S. 75 (1975); Udall v. Tallman, 380 U. S. 1380 U. S. 16 (1965); Unemployment Compensation Comm’n v. Aragon, 329 U. S. 143329 U. S. 153 (1946); McLaren v. Fleischer, 256 U. S. 477256 U. S. 480-481 (1921).


The result of the two footnotes as interpreted by the courts over the years, is that Chevron has come to mean that any ambiguity in a statute at all leads to automatically deferring to agency regulations.



What Are You Likely to See From The Supreme Court


  1. The Supreme Court basically has four options before it and they are: 1) getting rid of Chevron deference and replacing it with nothing; 2) keeping Chevron deference as is; 3) Skidmore, which would mean that all regulations are just persuasive authority and nothing more; or 4) Kisorizing Chevron.
  2. A majority of Justices seemed very concerned about getting rid of Chevron deference and replacing it with nothing.
  3. Keeping Chevron deference as is, from reading the views of the various justices they have expressed over the years in one form or another, is also not an option.
  4. There didn’t seem to be much interest in just going with Skidmore, which would mean that the regulations are just persuasive authority but could be freely ignored by the courts.
  5. Kisorizing Chevron seem to be the most likely option. They can do that by saying that courts needed to take the dueling footnotes of Chevron seriously and do a deep dive before giving deference to regulations. That is, lifting the statements made in Kisor, such as the ones covered in §I of this blog entry, would be a place to start.
  6. Of course, one never knows what the Supreme Court will actually do, so it will be interesting to see how close Chevron will come to Kisor. My guess is that it will be very close.
  7. Legislation is necessarily something that have to be phrased in such a way so that a majority of legislators will go for it. As a result, legislation is inherently ambiguous. How Congress chooses to talk about the implementing authority to carry out the legislation may become increasingly important. Also, one wonders whether statutory language may try to be less ambiguous than it usually is. The problem with that is the less ambiguous you make statutory language, the less likely the legislation will pass in the first place.
  8. Many States have a Joint Commission on Administrative Rules (such entities are actually a division of the legislature and not the executive agencies. Also, I worked for such an entity in Illinois at one point in my career), and one wonders whether those kinds of entities will become even more important. For those who don’t know, those kinds of entities have dual roles. One role is proofreading the regulations that come out. The role that I really enjoyed was seeing if the regulations that came out were consistent with legislative intent. If they were not, you had to negotiate with the executive agency to make sure the regulation was consistent with legislative intent. If the agency did not agree to modify the regulations, the legislators on the committee (if memory serves correctly, there was an even split among the parties with respect to representation on that committee), could vote against the proposed regulation. Such a vote would create a record that the regulation exceeded legislative intent thereby making it more likely for a court to throw out the regulation itself when challenged as exceeding legislative intent. I did not work for that committee for a long period of time (though my time working for that committee has profoundly shaped my view of administrative law), and so I am not aware of any instances where the members of the committee voted against a regulation. In my experience, the mere fact a negative vote against the regulation could happen was enough to get the executive agency to do the right thing. As far as I know, the federal government does not have such an entity. Perhaps, it is time to consider one. Certainly, all states should consider one if they don’t already have it.
  9. When the decision does come down, probably in June, I will be sure to have a blog entry discussing the decision. It will be interesting to see how far the Supreme Court Kisorizes Chevron or if they take some other approach.