How the Supreme Court Used Fish to Undermine Government Agencies
On June 28, the U.S. Supreme Court reversed a bedrock principle of administrative law called the Chevron doctrine. The vehicle was an opinion for two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. This opinion will have massive ramifications for administrative law, and will affect any area that federal agencies regulate, such as environmental issues and reproductive justice.
The decision has the potential to affect the Federal Communications Commission’s work too, including policies ensuring an open internet and broadband affordability. Here we discuss the two cases, and the destruction of the broader doctrine.
The cases before SCOTUS: Loper Bright and Relentless
The cases followed similar fact patterns. In Loper Bright, a group of Atlantic herring commercial fishers sued the National Marine Fisheries Service (NMFS). The plaintiffs challenged the agency’s rule requiring them to pay for observers on their fishing boats. The NMFS adopted the rule under its interpretation of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (MSA). Similarly, owners of two fishing vessels challenged the same rule in Relentless.
In both cases, the complaining parties argued that the MSA does not authorize the NMFS to collect fees to fund such observer programs because the law is silent on the issue. At earlier stages of the case, the district courts and lower appellate courts — the U.S. District Court for the District of Columbia and the D.C. Circuit in Loper Bright, and the U.S. District Court for Rhode Island and the First Circuit in Relentless — all applied Chevron deference, a doctrine in which courts defer to an agency’s reasonable interpretation of an ambiguous statute when reviewing agency action, and upheld the rule.
At the Supreme Court, the complaining parties went beyond just challenging the NMFS rule. They argued that the entire doctrine of Chevron should be overruled.
Administrative-law principles: Chevron deference
Chevron deference is named for a landmark Supreme Court case from 1984, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. It has been a bedrock principle of administrative law from its inception 40 years ago.
Until the Court issued its disastrous ruling, we had such deference because it permitted agencies to work the way they were designed to. Agencies are staffed with experts in the areas they regulate. For example, the Food and Drug Administration employs experts from a variety of disciplines that touch public health, such as chemists, consumer-safety experts, engineers, biologists, epidemiologists, doctors, pharmacists and statisticians.
As the Supreme Court recognized in the 1984 Chevron decision, Congress delegates certain policy decisions and rulemaking to federal agencies precisely because they have superior expertise and technological knowledge. And where such agency action is a reasonable interpretation of the confines of the policymaking authority Congress granted, judges should defer to the decisions of these experts because judges lack such expertise.
As Justice Elena Kagan stated during the oral argument for Loper Bright, “Chevron is a doctrine that says . . . we recognize that there are some places where congressional direction has run out, and we think Congress would have wanted the agency to do something rather than the courts. We accept that because that’s the best reading of Congress and also because we know in our heart of hearts . . . that agencies know things that courts do not. And that’s the basis of Chevron.”
And as she further noted, 70 Supreme Court decisions and around 17,000 lower-court decisions have relied on Chevron.
What did the Supreme Court do?
The Court overturned Chevron in full, with Chief Justice John Roberts writing for the majority (joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett). The majority agreed with the fisheries, stating that Chevron cannot be squared with the Administrative Procedure Act (the APA), even though the doctrine stood for 40 years. The majority reasoned that the APA requires that courts — and not agencies — must independently decide all relevant questions of law and apply their own judgment to that inquiry. The justices said that by deferring to agency interpretation, the Chevron doctrine “depart[s]” from the understanding that the judiciary alone decides such questions because it requires courts to “ignore, not follow, ‘the reading the court would have reached’” if it exercised independent judgment.
Here’s why that reasoning simply does not hold water: Contrary to the majority’s reasoning here, the APA is consistent with Chevron.
To reach its conclusion, the majority relied on Section 706 of the APA, and said it makes clear that agency interpretations aren’t entitled to deference. But the text of Section 706 doesn’t state any standard of review for deciphering a statute, including whether a deferential standard should be applied. So the text itself doesn’t foreclose the possibility that a court can defer to an agency’s interpretation when deciding questions of law. The history of the statute — looking at administrative procedures from before the enactment of the APA — also suggests that a court can decide a relevant question of law with deference to agencies under Chevron.
The very design of Congress’ delegation of power to administrative agencies requires deference to their expertise. Congress, which wrote the APA, knows that it cannot write regulatory statutes that capture all of the nuances and technicalities of every single industry. Some laws will have gaps and some will be vague — and an expert who understands how those gaps and ambiguities should play out should be the one to parse through all of that. As Justice Kagan wrote in her dissent (with Justices Sonia Sotomayor and Ketanji Brown Jackson joining), “A rule of judicial humility gives way to a rule of judicial hubris.”
In a baffling move, the Court noted that today’s decision doesn’t “call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” The Court’s majority cherry-picks when it decides to respect stare decisis (in other words, when to honor previous court rulings) by overturning the entire doctrine in this case but retaining the prior cases’ legitimacy. And, of course, the Court has cherry-picked in the same way in a variety of other instances — as with reproductive rights in Dobbs, as Justice Kagan’s dissent also notes.
Without Chevron, courts themselves will need to determine the proper interpretation of a statute. An agency’s interpretation will matter only if the non-expert judges find the agency’s reasoning persuasive when considering potential statutory interpretation. This residual level of deference is called Skidmore deference, after a Supreme Court case called Skidmore v. Swift & Co, decided in 1944.
As the dissent notes, should judges really be the ones to decide when a group of squirrels is distinct from one another under the Endangered Species Act, or when an alpha amino acid polymer qualifies as a protein under the Public Health Service Act? (Justice Kagan, for one, clarifies that she’d like to know what an alpha amino acid polymer is in the first place.)
And if there’s any doubt that certain interpretations of complex industries should be left to agencies, we’ll flag that in Ohio v. EPA — issued the day before SCOTUS reversed Chevron — the Court had to issue a corrected version of the opinion. Why? Well, in the original version Justice Gorsuch mistakenly referred to nitrous oxide (laughing gas) instead of nitrogen oxide (the air pollutant at issue in the case).
But, of course, the conservative majority still claims that we should leave these scientific and technical judgment calls to the judiciary.
How striking down Chevron will affect the FCC and other agencies
Overturning Chevron could hamper the FCC’s ability to regulate in a lot of areas. The agency, which deals in specialized and technical matters such as spectrum policy and broadband, employs experts with diverse and extensive backgrounds that help it make policy. These experts are steeped in industry and technical experience far beyond that of the average generalist judge or lawmaker.
Beyond jeopardizing the FCC’s general policymaking powers, the reversal of Chevron will impact the conduct of the ongoing Title II litigation, even if it does not change the case’s outcome.
Industry groups have challenged the FCC’s 2024 order placing broadband internet access service (“BIAS”) back under Title II of the Communications Act, and defining it as a telecommunications service or common-carrier service. The FCC has had deference on this kind of decision before because of a seminal case called National Cable & Telecommunications Association v. Brand X Internet Services, which held that Chevron applies when the FCC makes these kinds of regulatory classification decisions. Gorsuch’s concurrence called out Brand X as an example of “how bad” Chevron can get. But the deference in Brand X to the FCC on such a technical question is essential for regulating internet companies — lest Congress have to introduce new laws every single time a new technology is developed.
The court battle over Net Neutrality can be won without relying on Chevron, as the FCC’s 2024 Safeguarding and Securing the Open Internet Order demonstrates. Title II is the correct classification for BIAS from a technical standpoint and from a common-sense, pro-consumer perspective too.
Even without relying on deference to the agency’s interpretation of the Communications Act, a reasonable court should come to the same conclusion as the FCC because BIAS is best classified as a telecommunications service. Even as the decisions deferred to the FCC, several judges and justices — including Justice Antonin Scalia — have recognized over the years just how logical it is to treat internet access as a telecom service under the statutory definition for Title II.
But it’s a steeper legal hill to climb without Chevron and the reviewing court’s deference to the FCC’s judgment. Under Chevron, even if the court did not agree with the FCC’s interpretation, it would uphold that agency interpretation so long as it was reasonable.
That’s really the only reason that the Trump FCC’s decision to abdicate its authority over broadband survived judicial review. The D.C. Circuit upheld that 2017 order under Brand X, because it decided that classifying BIAS as a Title I information service was a reasonable policy choice to make under Chevron. But the concurring opinions from two judges out of the three-judge panel make it clear that without such deference, they would not have reached that outcome.
For example, Judge Patricia Millett noted in her concurrence that the reclassification was “unhinged from the realities of modern broadband service,” while Judge Robert L. Wilkins noted that he was bound by Brand X “even though critical aspects of broadband Internet technology and marketing underpinning the Court’s decision have drastically changed since 2005.” If Chevron had been overturned then, that reviewing court likely would have come to a different decision.
In other words, Chevron was used to preserve bad FCC decisions, not just good ones. But overall, losing the doctrine at a time when the federal bench is so hostile to agency regulation is a tremendous blow.
This change in administrative law will have drastic consequences beyond the future of internet rights. It implicates virtually all causes that progressives might care about, because agency policymaking is broad and far-reaching. Agencies make policy choices in a variety of crucial areas, including reproductive rights, health care, climate change, environmental protection, education and workers’ rights. And overturning Chevron undercuts their authority to do so.
All in all, this decision is a damaging blow to the integrity of federal agencies’ processes to protect the public. Yet it’s not the end of the story by any means. Free Press just intervened to defend the FCC’s rules in the lawsuit challenging Net Neutrality, and we’re still confident that we will succeed. So while Chevron should have been preserved, we’ll keep fighting for your rights here and in other areas, albeit in a new legal landscape.
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