Day 364: Much Ado About Chevron

… And in a decision that surprised no one, the Supreme Court today struck down the judicial deference doctrine it announced forty years ago in Chevron v. Natural Resources Defense Council.

Under Chevron, which had become the most cited case in administrative law, judges would defer to an agency’s interpretation of a statute it administers unless (1) the statute left no ambiguity for the agency to interpret, or (2) the agency’s interpretation was unreasonable.

The legal profession has been hullabalooing about this case, Loper Bright Enterprises v. Raimondo, since the Court granted cert. Based on previous decisions of the now-dominant conservative majority and the tenor of oral arguments, most people expected Chevron to go to its grave.

The Court split among ideological lines in its 6-3 decision, mirroring general sentiments in the legal profession. Many liberals viewed the case against Chevron as a trump card (sorry, couldn’t resist) in the concerted conservative plan “to deconstruct the administrative state.”

deference is bad for immigrants

Perhaps because I’m an immigration lawyer, however, I’m not nearly as much in arms about this as most liberals.

First, throwing out Chevron is probably better for noncitizens. As I pointed out in my book The Accidental History of the U.S. Immigration Courts, the executive branch has always deliberately stacked the deck against noncitizens as a perceived “security” measure. The “immigration courts” are really an agency of the Department of Justice, the nation’s law enforcement body. And decisions of the immigration reviewing body, the Board of Immigration Appeals, can be re-decided by the attorney general any time, for any reason. If Loper Bright empowers the U.S. Courts of Appeals not to defer to the BIA or the attorney general, that’s fine by me.

Loper Bright might, I suppose, lead to more blatant judicial activism on immigration rulemaking, but that seems pretty political already. If you doubt it, count how often you see pro-immigration groups file challenges to regulations in the conservative Fifth Circuit and how often you see anti-immigration states file challenges to immigration regulations in the liberal Ninth Circuit.

Balancing the “unitary executive”

This value may be most obvious in the immigration context right now, but it may not be isolated there. In another aspect of the war on the administrative state, the Court in a series of cases has struck down a variety of limitations on the president’s power to directly control the work of federal agencies. Trump supports the “unitary executive” theory, as do other presidential candidates. As the unitary executive theory gains ground, should we necessarily lament the idea of another branch of government having the freedom to say when the executive has overstepped the law?

The Court in Loper Bright noted that courts always have and may still give “respect” to agency interpretations of the law. This is basically what the Court has called Skidmore deference — where an agency’s interpretation is within their expertise, well supported, and persuasive, sure, courts will often uphold it. Judges may be especially inclined to do this where the issue calls for technical expertise that the agency possesses, or they may at least credit the agency’s expert opinions and then apply that to the court’s understanding of the law. The courts may lack the expertise of the agencies, but they should be at least as expert as the Congress that wrote the law the agency is applying.

Do Judges Really Defer anyway?

Besides, judges may be doing this already. If a judge doesn’t like an agency decision, there’s usually plenty of room to rule that the statute unambiguously requires a different result (or, less often, that the statute is ambiguous but the agency’s interpretation was unreasonable).

In a 2006 article, Professors Thomas J. Miles and Cass Sustein found that the most conservative judges were thirty percentage points more likely to uphold conservative agency actions and the most liberal judges were twenty-seven percentage points more likely to uphold liberal agency actions.

To be sure, other studies have suggested that Chevron deference (as opposed to other, less deferential doctrines) did make a meaningful difference at the court of appeals level, with agencies winning 71 percent of the time when the court cited Chevron. But there’s a selection bias problem in these studies: Courts may have cited Chevron when they were already inclined to uphold, and cited less deferential doctrines when they were inclined to strike down. That doesn’t mean Chevron was doing the work. None of these cases can test the counterfactual: whether the courts would have decided the cases differently if they hadn’t been required to apply a deference doctrine at all.

Maybe history will prove me wrong; maybe courts will start striking down agency decisions at a much higher rate now that the Chevron shackles are off. But even then, we can’t prove that they wouldn’t have done so anyway.

Another Blow to Stare Decisis?

And that brings me to an issue with Loper Bright that does deeply concern me: its treatment of stare decisis. The Court notes the principle only to dismiss it. Chevron, it says, is wrong. Besides that, it’s unworkable; we keep having to clarify it. While the latter point may have some resonance (try teaching deference doctrine to 2L law students), it doesn’t distinguish Chevron from many other court-made doctrines. (I railed about one of my least favorites, the standing doctrine, in reaction to another Court decision earlier this week.) And the Court’s first argument mostly amounts to “we can ignore prior cases when we don’t agree with them.” Ummm …

Photo by Tingey Injury Law Firm on Unsplash

I’ve previously written on this blog (here) and on Substack (here) about how the Court’s “freedom to reinterpret” (judicial activism is such a loaded term) has affected and may soon affect immigration policy. But if it affects public perception of the legitimacy of the Court — which already hit a historic low in 2023 — that will be very bad not just for liberals but for everyone who values the last 250 years of stable(ish) democratic governance.

Certainly we’ve seen activist Courts before. The Warren Court, in particularly, was noted (and, at the time, decried) for ignoring doctrines like “separate but equal” accommodations for Blacks. I’d like to see studies on how the Roberts Court, especially the recent one, has treated stare decisis compared to earlier Courts.

A simple list of overturned cases doesn’t necessarily answer the question. For one thing, the list is subject to interpretation. More importantly, overruling certain fundamental doctrines may do more to delegitimize the Court than other decisions. Any valuable study of the legitimacy effects of ignoring stare decisis has to be qualitative as well as quantitative, evaluating not only the number of cases overturned but the centrality of the doctrines in those cases.

A little historical perspective might also be valuable — I suspect, for example, that most conservatives, no matter how fervent about “judicial restraint,” would now soften their views of Brown v. Board of Education.

How will liberals — especially those who aren’t immigration lawyers — view Loper Bright a generation or two from now?