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Overturning Chevron

June 28, 2024

Supreme Court columns with American flag and US Capitol
Close up of the columns of the Supreme Court building with an American flag and the US Capitol in the background

Prof. Cary Coglianese and Senior Fellow Gus Hurwitz offer their insights on the Supreme Court decision overturning Chevron.

In Loper Bright Enterprises v. Raimondo, the Supreme Court ruled that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous, overruling the Court’s 1984 decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.

Cary Coglianese, Edward B. Shils Professor of Law and Political Science and Director of the Penn Program on Regulation:

Today’s overturning of the Supreme Court’s 1984 decision in Chevron v. NRDC, one of the most cited administrative law precedents in the Supreme Court’s history, is dramatic. Yet it is not altogether surprising either, as it is of a piece with the current Court majority’s skepticism of the exercise of governmental authority by administrative agencies.

Cary Coglianese, Edward B. Shils Professor of Law & Political Science Cary Coglianese, Edward B. Shils Professor of Law & Political ScienceToday’s decision authorizes a more muscular posture by the judiciary when reviewing decisions of administrative agencies. Its results will be felt within agencies across the federal government. Some agencies will likely give even greater pause before responding to new, pressing problems under older statutes that do not unambiguously authorize needed governmental response. This could mean, for example, that agency officials will feel hampered in their ability to respond to matters such as cybersecurity risks or the risks of artificial intelligence that have not been specifically spelled out in agencies’ authorizing statutes that were written in an earlier time.

Another consequence of today’s decision is a further shift in power from Congress and the executive branch to the judiciary. This may paradoxically create both new flux and new rigidity in public policy. The flux will come when different lower courts interpret the same agency statutes differently. Some empirical research has suggested that Chevron dampened the ideological variance across judicial decisions concerning agencies’ statutory authority. Unless or until the Supreme Court resolves lower court differences of opinion, agencies will face conflicts and even some chaos in what their authorizing statutes mean.

On the other hand, going forward, when courts resolve questions of agency statutory meaning, their decisions will introduce new rigidities. Chevron had afforded agencies the opportunity to change their interpretations of ambiguous statutes in light of new evidence and new problems—as long as those new interpretations were reasonable. Chevron was grounded on the premise that Congress had both empowered and entrusted the agency to act upon its expert judgment in light of new circumstances. But no more. Going forward, what a court says a statute means will be fixed by principles of strong stare decisis or precedent. Agencies will thus be given less room to adapt as needed in the face of changing technologies or social circumstances.

There is one thin silver lining in today’s decision from the standpoint of preserving Chevron’s virtues: the Court did not ground its overturning of Chevron on the Constitution but on statutory law. It held that Chevron was inconsistent with the Administrative Procedure Act. This means that, in principle, a future Congress could overturn today’s overturning and reinstate Chevron by requiring courts to adhere to it. Clearly the political stars would need to align to see this happen. But in the future, should both houses of Congress have sufficient majorities willing to act, it is possible that Chevron will rise from the ashes.

Gus Hurwitz, Senior Fellow and Academic Director of the Center for Technology, Innovation & Competition:

Gus Hurwitz, Senior Fellow & CTIC Academic Director Gus Hurwitz, Senior Fellow & CTIC Academic DirectorThe Court’s opinion today is surprising in how it is framed, but not necessarily in its outcome. The key concern driving the outcome is that Chevron had become a “license authorizing an agency to change positions as much as it likes,” giving rise to dramatic shifts in agency policies between presidential administrations. This lack of stability runs counter to core rule-of-law values that legal interpretation is meant to protect.

Under today’s opinion, courts will still give substantial weight to agencies’ technical expertise in deciding how to interpret laws enacted by Congress. But it re-asserts a primary role for the courts in interpreting what Congress intended for those laws to mean. In so doing, it promises to prevent policy future “flip-flops” and shift responsibility for correcting interpretative mistakes from the executive to the legislature.

Read more of our esteemed faculty’s perspectives on today’s legal issues.