In Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the U.S. Supreme Court overruled Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 104 S.Ct. 2778 (1984). Democrats are up in arms. Now that the Court has ended “Chevron deference”—meaning courts are free to resolve cases and controversies without any systematic bias in favor of the government—the sky, they fear, will begin falling any minute. But will it? Will Loper Bright even change the result in the vast majority of administrative law cases? This article argues the answer to both questions is no.
SUMMARY OF MY ARGUMENT
Facts make cases, and the facts at issue in Loper Bright were embarrassing to the government: the agency wanted to impose a hidden tax on family-business fishing companies by forcing them to pay some $700+ a day—up to 20% of their profits—to babysit government nannies onboard their vessels, said deep-state bureaucrats monitoring for overfishing. Obviously, the government’s self-serving policy—designed to increase the government’s inflow of money—in this case had nothing to do with scientific or technical issues.
In cases that involve scientific and technical issues that require expertise—as Chevron did and as the Loper Bright dissent’s red-herring examples do—courts have always benefited from and deferred to the testimony of experts, who can provide opinion testimony that is helpful to the trier of fact. In other words, “Chevron deference” was never needed as much as people think, at least not in cases in which it should matter. As Loper Bright notes, we still have the more reserved Skidmore “respect.” In future cases, the government will remain free to present expert scientific and technical evidence, and if the government deserves to win on the issue, it will. As Justice Gorsuch pointed out in his concurrence, all Loper Bright means is that going forward, federal courts will do exactly as they did before the mid-1980s, and exactly as they have done since the founding: resolve cases and controversies without any systemic bias in the government’s favor.
DISCUSSION
In a 6-3 opinion, the Supreme Court overruled Chevron. The Court held that Chevron was inconsistent with both the constitutional obligation of courts to say what the law is and with the Administrative Procedure Act (APA). The Court held that stare decisis—which is not an inexorable command—did not requiring upholding Chevron, which the Court described as grievously wrong from the outset. Going forward, held the Court, courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.
As the Court recognized:
Article III of the Constitution assigns to the Federal Ju-
diciary the responsibility and power to adjudicate “Cases”
and “Controversies”—concrete disputes with consequences
for the parties involved. The Framers appreciated that the
laws judges would necessarily apply in resolving those dis-
putes would not always be clear. Cognizant of the limits of
human language and foresight, they anticipated that “[a]ll
new laws, though penned with the greatest technical skill,
and passed on the fullest and most mature deliberation,”
would be “more or less obscure and equivocal, until their
meaning” was settled “by a series of particular discussions
and adjudications.” The Federalist No. 37, p. 236 (J. Cooke
ed. 1961) (J. Madison).The Framers also envisioned that the final “interpreta-
tion of the laws” would be “the proper and peculiar province
of the courts.” Id., No. 78, at 525 (A. Hamilton). Unlike the
political branches, the courts would by design exercise “nei-
ther Force nor Will, but merely judgment.” Id., at 523. To
ensure the “steady, upright and impartial administration of
the laws,” the Framers structured the Constitution to allow
judges to exercise that judgment independent of influence
from the political branches. Id., at 522; see id., at 522–524;
Stern v. Marshall, 564 U. S. 462, 484 (2011).
In dissent, Justice Kagan defended Chevron as “rooted in a presumption of legislative intent,” and a “rule of judicial humility” that the majority has replaced with a “rule of judicial hubris.” Justice Kagan’s dissent noted several examples of heavily scientific and technical issues, complaining that judges cannot decide—or even understand—these types of issues. Justice Kagan wrote:
Consider a few examples from the caselaw. They will help show what a typical Chevron question looks like—or really, what a typical Chevron question is. Because when choosing whether to send some class of questions mainly to a court, or mainly to an agency, abstract analysis can only go so far; indeed, it may obscure what matters most. So I begin with the concrete:
• Under the Public Health Service Act, the Food and Drug Administration (FDA) regulates “biological product[s],” including “protein[s].” 42 U.S.C. § 262(i)(1). When does an alpha amino acid polymer qualify as such a “protein”? Must it have a specific, defined sequence of amino acids? See Teva Pharmaceuticals USA, Inc. v. FDA, 514 F.Supp.3d 66, 79–80, 93–106 (D.C.C. 2020).
• Under the Endangered Species Act, the Fish and Wildlife Service must designate endangered “vertebrate fish or wildlife” species, including “distinct population segment[s]” of those species. 16 U.S.C. § 1532(16); see § 1533. What makes one population segment “distinct” from another? Must the Service treat the Washington State population of western gray squirrels as “distinct” because it is geographically separated from other western gray squirrels? Or can the Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest? See Northwest Ecosystem Alliance v. United States Fish and Wildlife Serv., 475 F.3d 1136, 1140–1145, 1149 (CA9 2007).
• Under the Medicare program, reimbursements to hospitals are adjusted to reflect “differences in hospital wage levels” across “geographic area[s].” 42 U.S.C. § 1395ww(d)(3)(E)(i). How should the Department of Health and Human Services measure a “geographic area”? By city? By county? By metropolitan area? See Bellevue Hospital Center v. Leavitt, 443 F.3d 163, 174–176 (CA2 2006).
• Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park—specifically, to “provide for substantial restoration of the natural quiet.” § 3(b)(1), 101 Stat. 676; see § 3(b)(2). How much noise is consistent with “the natural quiet”? And how much of the park, for how many hours a day, must be that quiet for the “substantial restoration” requirement to be met? See Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 466–467, 474–475 (CADC 1998).
• Or take Chevron itself. In amendments to the Clean Air Act, Congress told States to require permits for modifying or constructing “stationary sources” of air pollution. 42 U.S.C. § 7502(c)(5). Does the term “stationary source[ ]” refer to each pollution-emitting piece of equipment within a plant? Or does it refer to the entire plant, and thus allow escape *2297 from the permitting requirement when increased emissions from one piece of equipment are offset by reductions from another? See 467 U.S. at 857, 859, 104 S.Ct. 2778.
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2296–97 (2024).
Courts, however, confront such difficult scientific issues every day. How do courts do that? They receive, and weigh, expert scientific evidence. A strong argument can be made that Justice Kagan’s worries are overblown. In a future case, the government will be able to present scientific, expert evidence in support of its position. If the government deserves to win, it will. Why should a court have to automatically accept the government’s interpretation of an issue? Justice Kagan’s dissent reveals that she will side with federal government power no matter the issue. The majority is correct: courts decide cases and their job is to reach the best result, not merely one that is “good enough” and favored by the government.
The knee-jerk reaction of many legal observers has been to say something like “Loper Bright is likely to have a significant impact on administrative law. It will increase both the number of challenges to agency action and the likelihood of success of those challenges.” While it is understandable that lawyers would reach this conclusion, I question just how many administrative law cases will be decided differently than they would have been had the Court upheld Chevron. When cases involve truly complex scientific and technical issues, courts are very humble—what choice have they? Even if a particular judge has an undergraduate degree in engineering, judges recognize that their role is not to be a science expert. Judges receive expert scientific testimony from all parties and decide as best they can.
An instructive area of the law to examine in this regard is Daubert challenges. Daubert requires judges to become amateur scientists, receiving and digesting scientific expert evidence and reaching a decision on whether a challenged expert qualifies, based on his qualifications and the methodology used, to testify as an expert. To accomplish this task, courts must consider the following factors:
- Whether the expert’s technique or theory can be tested and assessed for reliability;
- Whether the technique or theory has been subject to peer review and publication;
- The known or potential rate of error of the technique or theory;
- The existence and maintenance of standards and controls; and
- Whether the technique or theory has been generally accepted in the scientific community.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594-95 (1993). In Daubert, the Court said, “We are confident that federal judges possess the capacity to undertake this review.” Id. at 592. The underlying Chevron issue is similar to Daubert: the ability of courts to decide scientific matters after learning the science from expert evidence in the case. Even without the requirement of “Chevron deference,” courts will have no choice but to defer to experts—including the government’s experts if they have persuasive arguments—in cases that involve complex scientific issues, such as Justice Kagan’s examples.
The conventional view is that going forward, Loper Bright will a boon for regulated parties, who can now seek to invalidate agency action by showing the agency’s interpretation of its statute is not the best one. While Loper Bright certainly does not hurt regulated parties, will it really be a “boon?” It is no longer enough for the government to argue that its interpretation is “reasonable” without proving that its interpretation it is the best one. No longer enough for what? For the government to get an automatic win. But welcome to litigation. The government will still have a very strong chance of winning, even after Loper Bright, if its interpretation is reasonable and the issue is a truly complex scientific one. The Loper Bright majority is correct that the law does not support the government starting with a head start. All parties can submit expert evidence and may the best result win.
Just how broad Loper Bright’s new rule is — and its effect on regulations that were previously upheld under Chevron — will no doubt be the subject of future litigation. The majority caveated its decision by saying that it was not automatically overruling prior decisions that relied on Chevron. But challengers likely will argue that those earlier decisions should not be followed given, for example, poor reasoning or unworkability. There certainly will be increased litigation; I do not deny that.
The majority also held that the best reading of a statute could be that it delegated discretionary authority to an agency — and a reviewing court must respect that delegation. But whether, and how far, those delegations go will be hotly contested. And that focus on delegation likely will bring the nondelegation doctrine to the forefront, potentially prompting the Supreme Court to address the doctrine head-on. The Court may also have to resolve circuit splits that arise as courts reach differing decisions on the best reading of a statute.
Ultimately, though, overruling Chevron may prompt greater stability in the law, and greater predictability for businesses, as the best interpretation of a statute is less likely than the prior regime’s “reasonable” interpretation to change over time.
Background (Chevron)
The question in Chevron was whether an Environmental Protection Agency regulation was consistent with the term “stationary source” in the Clean Air Act. The regulation defined “stationary source” to include all pollution-emitting devices within the same industrial plant, rather than to refer to each device individually. In upholding the regulation, the Court articulated the two-part approach that became known as the Chevron doctrine.
The first step, the Court instructed, was to ask whether Congress had directly spoken to the precise question at issue. To answer that question, the Court continued, courts should use traditional tools of statutory construction. If the intent of Congress is clear — if “Congress had directly spoken to the precise question at issue” — the inquiry is over.
But if Congress had not directly addressed the precise question, the Court continued, the reviewing court continues to the second step. The court should not “simply impose its own construction of the statute.” Instead, it should decide whether the agency offered a permissible construction of the statute, even if that construction was not the one the court would have reached if it was analyzing the statute on its own. This last point is the key point. Loper Bright restored the principle—required by the United States Constitution—that judges decide what the law is.
As the majority in Loper Bright pointed out, Chevron itself, incredibly, did not mention the Administrative Procedure Act, the landmark 1946 statute that sets out the contours of judicial review of agency action. Section 706 is the heart of the APA; it directs reviewing courts, “[t]o the extent necessary to decision and when presented, [to] decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” It requires a court to “hold unlawful and set aside agency action, findings, and conclusions found to be … not in accordance with law.” 5 U.S.C. §706(2)(A).
Instead, the Chevron Court grounded the doctrine in a presumption about Congressional intent: That when Congress uses ambiguous terms in a statute that is meant to be implemented by an agency, Congress intends for the agency (rather than courts) to resolve the ambiguity. See Smiley v. Citibank (South Dakota) N.A., 517 U.S. 735, 740-41 (1996). The Chevron Court reasoned that Congress could explicitly or implicitly delegate interpretive and policymaking authority to expert agencies. Thus, the Court reasoned, where a statute was silent or ambiguous, courts were required to defer to the agency’s reasonable policy choice.
Before Loper Bright, the Supreme Court limited Chevron’s reach in a number of decisions, particularly in recent years. To start, the Court established a threshold requirement for applying Chevron (sometimes called Chevron “step zero”), holding that Chevron applied only when “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead, 533 U.S. 218, 226-27 (2001). Most significantly, under the “major questions doctrine,” the Court held that Chevron doesn’t apply at all if the question at issue is one of “deep economic and political significance.” King v. Burwell, 576 U.S. 473, 486 (2015).
History and Proceedings in Loper Bright
The Magnuson-Stevens Act established eight regional fishery management councils, and required those councils to develop fishery management plans, which NMFS approves and promulgates as final regulations. 16 U.S.C. §§1852(a), (b), (h), 1854(a). The Act allows a fishery management council to require that “one or more observers be carried on board” fishing vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.” 16 U.S.C. §1853(b)(8). In 2020, NMFS approved a plan from the New England Fishery Management Council that required some fisherman to pay for a government-certified observer, at an estimated cost of $710 per day for the fishermen.
Loper Bright Enterprises and Relentless Inc., two fishing businesses subject to the NMFS rule, filed suit under the APA in the D.C. Circuit and the U.S. District Court for the District of Rhode Island, respectively. Both courts applied Chevron and upheld the NMFS rule. (The First Circuit later affirmed the Rhode Island district court opinion.) The courts both concluded at step one that Congress in the Magnuson-Stevens Act had not squarely addressed the issue of paying observers, and held at step 2 that the NMFS’s interpretation was a reasonable construction of the act. Judge Walker dissented from the D.C. Circuit decision, arguing that Congress’s silence about industry-funded observers in the act unambiguously indicated that the NMFS lacked authority to require fishermen to pay for observers. The fishing businesses sought Supreme Court review.
The Supreme Court’s Decision
The Court granted the fishermen’s petition for a writ of certiorari in both cases to decide whether to overrule or clarify Chevron. In a 6-3 decision, the Court overruled Chevron, vacated the decisions below, and remanded to the First and D.C. Circuits to review the NMFS’s construction of the Magnuson-Stevens Act without deference to the agency.
Chief Justice Roberts authored the majority opinion, in which Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett joined. Justice Thomas and Justice Gorsuch each authored concurring opinions. Justice Thomas argued that Chevron deference was unconstitutional in violation of Article III, and Justice Gorsuch emphasized that Chevron was inconsistent with the role of judges at common law.
Justice Kagan, joined by Justice Sotomayor and Justice Jackson, dissented, arguing that Chevron was correctly decided, that the stare decisis factors strongly counseled against overruling the doctrine, and that in so doing, the Court arrogated powers to itself — an unelected, inexpert body — and away from agencies with expertise and political accountability.
The Majority Opinion
In the majority’s view, Chevron deference is inconsistent with the role of courts to provide the final interpretation of the law. The Court described that role through founding-era texts like Hamilton’s Federalist No. 78 (the final “interpretation of the laws” would be “the proper and peculiar province of the courts”) and in Marbury v. Madison (“It is emphatically the province and duty of the judicial department to say what the law is.”). And while the judicial branch has a long history of “according due respect to Executive Branch interpretations of federal statutes,” respect means just that — a view that could influence the judiciary’s judgment, but would not supersede it.
That view changed slightly during the New Deal Era, Chief Justice Roberts explained, but the pre-Chevron, pre-APA cases of that time showed deference to “fact-bound determinations” made by agencies, not deference to agencies’ resolution of legal questions. The APA codified that no-deference-on-legal-issues approach, the majority reasoned, by requiring that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. §706.
The majority explained that Chevron cannot be squared with that history or with the APA. Chevron requires a court to defer — to give binding deference — to agency interpretations with which the court disagrees. The post-hoc justification for Chevron, that Congress uses ambiguity as an implicit delegation to an agency, said the Court, does not approximate reality; as Chevron itself conceded, sometimes ambiguities result because Congress could not answer the question at hand, or because Congress failed to consider the specific issue altogether.
Nor was the majority persuaded by the need for deference on account of an agency’s expertise, because interpreting statutes falls “more naturally into a judge’s bailiwick than an agency’s.” Moreover, in the majority’s view, “Congress expects courts to handle technical statutory questions,” and they are capable of doing so, especially with the agency’s informed judgment at their disposal.
Having concluded that Chevron was wrong, the majority defended its overruling by discussing the stare decisis factors. The Court explained that Chevron was fundamentally misguided and that the doctrine was unworkable at both steps. Courts have never come to a meaningful definition on the concept of ambiguity, and if the doctrine requires courts to decide the bounds of a reasonable interpretation of a statute, a court can just as well decide the best reading of a statute.
The Chief Justice also pointed to all the “refinements” the Court had needed to make to Chevron to keep it workable, quipping that those efforts had “transform[ed] the original two-step into a dizzying breakdance.” In addition, the Court reasoned that Chevron “destroy[ed]” reliance interests by licensing “an agency to change positions as much as it likes.” The Court observed that it had last afforded Chevron deference to an agency interpretation in 2016 and that the lower courts were decreasingly relying on Chevron.
The Court noted several limits of its holding:
- Although courts must now decide legal questions themselves without deference to agencies, some statutes may delegate authority to agencies. For example, the Court noted that Congress sometimes delegates “to an agency the authority to give meaning to a statutory term.” “[W]hen a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.”
- Ensuring that an agency acts within delegated authority means marking the boundaries of that authority and “ensuring that the agency has engaged in reasoned decisionmaking within those boundaries.”
- The Court stated that it was “not call[ing] into question prior cases that relied on the Chevron framework,” instructing that decisions upholding “specific agency actions” as lawful “are still subject to statutory stare decisis despite [the Court’s] change in interpretive methodology.” The Court explained that “[m]ere reliance on Chevroncannot constitute a ‘special justification’ for overruling” such decisions.
Justice Thomas’s Concurrence
Justice Thomas issued a solo concurrence reiterating his view that Chevron is unconstitutional because it curbs the judicial power afforded to courts in Article III and aggrandizes agencies’ power afforded to the executive in Article II. Justice Thomas emphasized that the Constitution mandates that “only the vested recipient of [constitutional] power can perform it,” so the legislative branch alone can exercise legislative power, and so on with the executive and judicial branches. Chevron disturbed that balance, said Justice Thomas, by permitting the executive to exercise judicial powers. And, he continued, defending Chevron deference as a delegation of policymaking authority to agencies does not work either, because policymaking authority is legislative authority, meaning agencies cannot exercise it.
Justice Gorsuch’s Concurrence
Justice Gorsuch also penned a solo concurrence defending the majority’s ruling. In his view, the decision “returns judges to interpretative rules that have guided federal courts since the Nation’s founding” — rules from which Chevron had improperly and radically departed.
Justice Kagan’s Dissent
Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. The weakly-reasoned dissent accused the majority of seizing power for the unelected, inexpert judiciary out of the hands of expert federal agencies who are ultimately answerable to the President. In response to the majority’s claim that agencies have “no special competence” for resolving ambiguities in the statutes they administer, while judges do, Justice Kagan wrote, “Score one for self-confidence; maybe not so high for self-reflection or -knowledge.”
Defending Chevron, the dissent pointed to the primary justification for agency deference: Congress often enacts statutes that contain uncertainties, and when it does, unless Congress says otherwise, it intends for agencies to wield discretionary power in interpreting Congress’s statutes. In the dissent’s view, Congress understands that agencies have expertise that courts lack, and that resolving statutory ambiguity is more a policy judgment than it is a question of legal interpretation.
Moreover, said the dissent, Congress has known about Chevron since the decision in 1984 and at this point now is presumed to legislate with the doctrine in the background. By the same token, the dissent concluded, Congress has had ample opportunity to discard Chevron, but it has provided a different rule only in a handful of statutes, reinforcing that Chevron remains the default rule.
Neither history nor the APA, the dissent continued, changes that basic understanding. Section 706 of the APA requires courts to decide all relevant questions of law, but, said the dissent, it does not prescribe a de novo standard of review. And two prominent Supreme Court decisions of the 1940s, in the dissent’s view, reflected the Supreme Court’s deference to agency interpretation in the pre-APA, pre-Chevron era.
Finally, the dissent attacked the majority’s stare decisis analysis. Chevron, said the dissent, was entitled to the “strongest form of protection” because it had been a foundational part of administrative law for decades and Congress had not intervened.
Implications
Although I don’t think as many cases would have been decided differently without “Chevron deference” as many seem to think, I have to admit that Loper Bright is, indeed, a major development in administrative law that is likely to increase both the number of challenges to agency action as well as their likelihood of success. When put in context, the decision holds clues about the way administrative law will continue to develop.
Loper Bright is likely to produce an immediate uptick in regulatory challenges. Challengers will no longer be constrained to argue that Congress spoke directly to the issue at hand or that the agency’s interpretation was outside the bounds of reasonable interpretation. Rather, litigants can prevail in court by arguing that an agency’s interpretation of its authorizing statute is not the best interpretation of the statute. In other words, the court will decide what the law is, and the government will have to win by starting on the one yard line, same as the regulated party, as opposed to having a 10-yard head start.
The Court’s Corner Post decision announced just days after Loper Bright likely will contribute to the increased litigation and provide opportunities for challengers to try to invalidate regulations previously found lawful. Corner Post held that the six-year statute of limitations for an APA claim challenging the lawfulness of agency action begins to run only when the action causes the plaintiff injury. Thus, a plaintiff who has suffered injury only recently from a regulation enacted more than six years ago can sue to challenge the regulation’s validity.
Although the majority in Loper Bright stated it was not questioning earlier decisions relying on Chevron to uphold particular agency actions, challengers are likely to argue (with some degree of success) that courts should not follow those earlier decisions. While the majority said that “mere reliance on Chevron” is not a ground for departing from precedent, challengers likely will point to factors like poor reasoning or unworkability, for overruling those earlier decisions now that Chevron itself cannot justify those outcomes. And because Chevron step 2 mandated deference to agency decisions, many circuit court decisions implementing that step did not engage in a detailed analysis. Corner Post’s procedural holding, combined with Loper Brights’ substantive holding, likely ensures that regulatory challenges will be a major area of litigation for years to come.
The majority focused primarily on questions of law, noting that Congress may explicitly delegate discretionary authority to agencies to define terms or otherwise make policy. But increased litigation over those issues is likely as well.
For one thing, courts must still decide whether Congress has delegated authority to an agency. For instance, Loper Bright explained that certain statutes use terms like “reasonable” or “appropriate” to indicate that Congress intends for the agency to fill in gaps. Just how far such delegation goes, though, can be open to dispute. Deciding whether Congress has delegated discretionary authority may prove difficult, and courts may decide to increasingly rely on the major questions doctrine as a presumption against finding delegation of authority over issues of deep economic or social significance.
Regulated parties are also likely to raise nondelegation arguments, pressing the view that Justice Thomas reiterated in his concurrence: The Constitution prohibits Congress from delegating policymaking authority — which is legislative — to the executive branch. Regulated parties are likely to argue that Congress unconstitutionally delegates its legislative power by using terms like “reasonable” or “appropriate” in conferring rulemaking authority.
Regulated parties are also likely to continue raising classic APA arguments, such as the charge that an agency has not engaged in reasoned decisionmaking because it failed to respond to significant comments from interested parties or ignored important aspects of the regulatory problem. The Court reinvigorated that doctrine this term in Ohio v. Environmental Protection Agency, No. 23A349, 2024 WL 3187768 (June 27, 2024).
The majority also did not focus on mixed questions — questions about the application of law to fact. But both Justice Gorsuch’s concurrence and Justice Kagan’s dissent suggest that the majority’s reasoning as to questions of law extends equally to mixed questions of law and fact. As Justice Kagan explained, “It is frequently in the consideration of mixed questions that the scope of statutory terms is established and their meaning defined.” Indeed, two weeks before Loper Bright, the Court held in Garland v. Cargill, 602 U.S. 406 (2024), that bump stocks do not fall within the statutory definition of “machineguns.” Notably, the Court did not mention Chevron once, and did not find the statute ambiguous, although the en banc Fifth Circuit had considered at length whether Chevron applied (ultimately holding it did not), with a majority of the judges finding the statute ambiguous.
In the long run, Loper Bright also may promote stability in administrative law by making it more difficult for agencies to change their interpretation of a statute (upon changes in administration or otherwise). The Chevron doctrine, as the Supreme Court extended it in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 975 (2005), allowed an agency to change its interpretation and still receive deference so long as its interpretation was within the range of reasonable interpretations. And agencies sometimes did just that, with the Federal Communication’s Commission’s classification and reclassification of broadband — the very issue in Brand X — serving as a prime example. Now, Loper Bright requires courts—which have the power to say what the law is—to determine the best interpretation of the statute and to reject any contrary agency interpretations.
As a result, appellate courts, and even the Supreme Court, may be called upon more frequently to determine a statute’s meaning. And if circuit courts cannot agree on the best reading of ambiguous language, the Supreme Court may increasingly be asked to step in. But because courts’ best interpretation of a statute is less likely to change over time, Chevron’s demise might result in greater stability — and more predictability for businesses.
DEEPER DIVE
The Essence of Chevron Deference
What did Chevron actually hold? As the Court in Loper Bright pointed out, for one thing, the opinion did not even mention the Administrative Procedure Act. As some other scholars have observed—and as the Court in Loper Bright noted—the Chevron decision itself did not see itself as revolutionary or even announcing any new law, at all. A careful review of the opinion shows that the Court felt it was simply applying well-settled principles. The tone of the Chevron opinion had the feel of the Court believing the decision was not particularly a hard one to make.
In Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Court confronted the Clean Air Act. The Court noted:
In the Clean Air Act Amendments of 1977, Pub. L. 95-95, 91 Stat. 685, Congress enacted certain requirements applicable to States that had not achieved the national air quality standards established by the Environmental Protection Agency (EPA) pursuant to earlier legislation. The amended Clean Air Act required these “nonattainment” States to establish a permit program regulating “new or modified major stationary sources” of air pollution. Generally, a permit may not be issued for a new or modified major stationary source unless several stringent conditions are met. The EPA regulation promulgated to implement this permit requirement allows a State to adopt a plantwide definition of the term “stationary source.” Under this definition, an existing plant that contains several pollution-emitting devices may install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant. The question presented by these cases is whether EPA’s decision to allow States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single “bubble” is based on a reasonable construction of the statutory term “stationary source.”
Id. at 840.
The EPA regulations containing the plantwide definition of the term stationary source were promulgated on October 14, 1981. 46 Fed. Reg. 50766. Respondents filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit pursuant to 42 U. S. C. § 7607(b)(1). The Court of Appeals set aside the regulations. National Resources Defense Council, Inc. v. Gorsuch, 222 U. S. App. D. C. 268, 685 F. 2d 718 (1982).
The intermediate appellate court observed that the relevant part of the amended Clean Air Act “does not explicitly define what Congress envisioned as a `stationary source, to which the permit program. . . should apply,” and further stated that the precise issue was not “squarely addressed in the legislative history.” Id., at 273, 685 F. 2d, at 723. In light of its conclusion that the legislative history bearing on the question was “at best contradictory,” it reasoned that “the purposes of the nonattainment program should guide our decision here.” Id., at 276, n. 39, 685 F. 2d, at 726, n. 39. Based on two of its precedents concerning the applicability of the bubble concept to certain Clean Air Act programs, the court stated that the bubble concept was “mandatory” in programs designed merely to maintain existing air quality, but held that it was “inappropriate” in programs enacted to improve air quality. Id., at 276, 685 F. 2d, at 726. Since the purpose of the permit program — its “raison d’etre,” in the intermediate appellate court’s view — was to improve air quality, the court held that the bubble concept was inapplicable in these cases under its prior precedents. Id. It therefore set aside the regulations embodying the bubble concept as contrary to law.
The United States Supreme Court granted certiorari to review that judgment, 461 U. S. 956 (1983). The Court reversed, concluding that the basic legal error of the Court of Appeals was to adopt a static judicial definition of the term “stationary source” when it had decided that Congress itself had not commanded that definition.
Respondents did not defend the legal reasoning of the Court of Appeals, but the Court concluded that “since this Court reviews judgments, not opinions, we must determine whether the Court of Appeals’ legal error resulted in an erroneous judgment on the validity of the regulations.” The Court noted:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
The Court continued:
“The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U. S. 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
Id. (emphasis added). The Court noted that it had long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations:
… “has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e. g., National Broadcasting Co. v. United States, 319 U. S. 190; Labor Board v. Hearst Publications, Inc., 322 U. S. 111; Republic Aviation Corp. v. 845*845 Labor Board, 324 U. S. 793; Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194; Labor Board v. Seven-Up Bottling Co., 344 U. S. 344.
“… If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” United States v. Shimer, 367 U. S. 374, 382, 383 (1961).
Id. (emphasis added). The emphasized portion is simply a statement of the rule 702 standard for when expert testimony is needed to assist the trier of fact in understanding complex scientific issues. It really is that simple. Rule 702 provides:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Fed. R. Civ. P. 702. Even though “other specialized knowledge” is included, the courts have focused on the “scientific” and “technical” aspects of rule 702. In Loper Bright, the issue was the government’s desire to impose a hidden tax in an oppressive manner. No court—whether a case called Chevron is on the books or not—is going to conclude that the government has any “expertise” that is entitled to “deference” from the court on such an issue. The government’s desire to impose an unfair and ridiculous hidden tax on small, family-owned fishing companies was not a scientific or technical issue, unlike the Clean Air Act issue that was decided in Chevron. In future cases involving truly scientific issues—such as the ones identified by the dissent in Loper Bright—courts will receive scientific expert testimony and, most likely, decide cases the same as they would have with or without Chevron. All Loper Bright did was remove what was essentially an irrebuttable presumption in favor of the government, and the facts at issue in Loper Bright exposed why the majority’s decision was correct.
Returning to an analysis of the Chevron opinion, the Court concluded:
In light of these well-settled principles it is clear that the Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the question before it was not whether in its view the concept is “inappropriate” in the general context of a program designed to improve air quality, but whether the Administrator’s view that it is appropriate in the context of this particular program is a reasonable one. Based on the examination of the legislation and its history which follows, we agree with the Court of Appeals that Congress did not have a specific intention on the applicability of the bubble concept in these cases, and conclude that the EPA’s use of that concept here is a reasonable policy choice for the agency to make.
Id. at 847. The Court turned to a discussion of the history behind the Clean Air Act:
In the 1950’s and the 1960’s Congress enacted a series of statutes designed to encourage and to assist the States in curtailing air pollution. See generally Train v. Natural Resources Defense Council, Inc., 421 U. S. 60, 63-64 (1975). The Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat. 1976, “sharply increased federal authority and responsibility 846*846 in the continuing effort to combat air pollution,” 421 U. S., at 64, but continued to assign “primary responsibility for assuring air quality” to the several States, 84 Stat. 1678. Section 109 of the 1970 Amendments directed the EPA to promulgate National Ambient Air Quality Standards (NAAQS’s)[15] and § 110 directed the States to develop plans (SIP’s) to implement the standards within specified deadlines. In addition, § 111 provided that major new sources of pollution would be required to conform to technology-based performance standards; the EPA was directed to publish a list of categories of sources of pollution and to establish new source performance standards (NSPS) for each. Section 111(e) prohibited the operation of any new source in violation of a performance standard.
Id. Section 111(a) defined the terms that are to be used in setting and enforcing standards of performance for new stationary sources. It provided:
“For purposes of this section:
…..
“(3) The term `stationary source’ means any building, structure, facility, or installation which emits or may emit any air pollutant.” 84 Stat. 1683.
In the 1970 Amendments that definition was not only applicable to the NSPS program required by § 111, but also was made applicable to a requirement of § 110 that each state implementation plan contain a procedure for reviewing the location of any proposed new source and preventing its construction if it would preclude the attainment or maintenance of national air quality standards.
Id. In due course, the EPA promulgated NAAQS’s, approved SIP’s, and adopted detailed regulations governing NSPS’s for various categories of equipment. In one of its programs, the EPA used a plantwide definition of the term “stationary source.” In 1974, it issued NSPS’s for the nonferrous smelting industry that provided that the standards would not apply to the modification of major smelting units if their increased emissions were offset by reductions in other portions of the same plant. See id. at 847.
The 1970 legislation, noted the Court, provided for the attainment of primary NAAQS’s by 1975. In many areas of the country, particularly the most industrialized States, the statutory goals were not attained. In 1976, the 94th Congress was confronted with this fundamental problem, as well as many others respecting pollution control. As always in this area, said the Court, the legislative struggle was basically between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern that strict schemes would retard industrial development with attendant social costs. The 94th Congress, confronting these competing interests, was unable to agree on what response was in the public interest: legislative proposals to deal with nonattainment failed to command the necessary consensus.
In light of this situation, said the Court, the EPA published an Emissions Offset Interpretive Ruling in December 1976, see 41 Fed. Reg. 55524, to “fill the gap” until Congress acted. The Ruling stated that it was intended to address “the issue of whether and to what extent national air quality standards established under the Clean Air Act may restrict or prohibit growth of major new or expanded stationary air pollution sources.” Id., at 55524-55525. In general, the Ruling provided that “a major new source may locate in an area with air quality worse than a national standard only if stringent conditions can be met.” Id., at 55525. The Ruling gave primary emphasis to the rapid attainment of the statute’s environmental goals. Consistent with that emphasis, the construction of every new source in nonattainment areas had to meet the “lowest achievable emission rate” under the current state of the art for that type of facility. See Ibid. The 1976 Ruling did not, however, explicitly adopt or reject the “bubble concept.”
The Clean Air Act Amendments of 1977, said the Couft, are a lengthy, detailed, technical, complex, and comprehensive response to a major social issue. A small portion of the statute — 91 Stat. 745-751 (Part D of Title I of the amended Act, 42 U. S. C. §§ 7501-7508) — expressly deals with nonattainment areas. The focal point of the controversy was one phrase in that portion of the Amendments. According to the Court:
Basically, the statute required each State in a nonattainment area to prepare and obtain approval of a new SIP by July 1, 1979. In the interim those States were required to comply with the EPA’s interpretative Ruling of December 21, 1976. 91 Stat. 745. The deadline for attainment of the primary NAAQS’s was extended until December 31, 1982, and in some cases until December 31, 1987, but the SIP’s were required to contain a number of provisions designed to achieve the goals as expeditiously as possible.
Most significantly for our purposes, the statute provided that each plan shall
“(6) require permits for the construction and operation of new or modified major stationary sources in accordance with section 173 . . . .” Id., at 747.
Before issuing a permit, § 173 requires (1) the state agency to determine that there will be sufficient emissions reductions in the region to offset the emissions from the new source and also to allow for reasonable further progress toward attainment, or that the increased emissions will not exceed an allowance for growth established pursuant to § 172(b)(5); (2) the applicant to certify that his other sources in the State are in compliance with the SIP, (3) the agency to determine that the applicable SIP is otherwise being implemented, and (4) the proposed source to comply with the lowest achievable emission rate (LAER).
Id. at 851. The 1977 Amendments, noted the Court, contained no specific reference to the “bubble concept.” Nor did they contain a specific definition of the term “stationary source,” though they did not disturb the definition of “stationary source” contained in § 111(a)(3), applicable by the terms of the Act to the NSPS program. Section 302(j), however, defined the term “major stationary source” as follows:
“(j) Except as otherwise expressly provided, the terms `major stationary source’ and `major emitting facility’ mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant (including any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator).” 91 Stat. 770.
Id.
The legislative history of the portion of the 1977 Amendments dealing with nonattainment areas, noted the Court, did not contain any specific comment on the “bubble concept” or the question whether a plantwide definition of a stationary source was permissible under the permit program. It did, however, plainly disclose that in the permit program Congress sought to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality. Indeed, the House Committee Report identified the economic interest as one of the “two main purposes” of this section of the bill. It stated:
“Section 117 of the bill, adopted during full committee markup establishes a new section 127 of the Clean Air Act. The section has two main purposes: (1) to allow reasonable economic growth to continue in an area while making reasonable further progress to assure attainment of the standards by a fixed date; and (2) to allow States greater flexibility for the former purpose than EPA’s present interpretative regulations afford.
“The new provision allows States with nonattainment areas to pursue one of two options. First, the State may proceed under EPA’s present `tradeoff’ or `offset’ ruling. The Administrator is authorized, moreover, to modify or amend that ruling in accordance with the intent and purposes of this section.
“The State’s second option would be to revise its implementation plan in accordance with this new provision.” H. R. Rep. No. 95-294, p. 211 (1977).
Id. at 852. The portion of the Senate Committee Report dealing with nonattainment areas stated generally that it was intended to “supersede the EPA administrative approach,” and that expansion should be permitted if a State could “demonstrate that these facilities can be accommodated within its overall plan to provide for attainment of air quality standards.” S. Rep. No. 95-127, p. 55 (1977).
The Senate Report noted the value of “case-by-case review of each new or modified major source of pollution that seeks to locate in a region exceeding an ambient standard,” explaining that such a review “requires matching reductions from existing sources against emissions expected from the new source in order to assure that introduction of the new source will not prevent attainment of the applicable standard by the statutory deadline.” Ibid. This description of a case-by-case approach to plant additions, which emphasized the net consequences of the construction or modification of a new source, as well as its impact on the overall achievement of the national standards, was not, according to the Court, addressed to the precise issue raised by the cases at issue.
Senator Muskie, noted the Court, made the following remarks:
“I should note that the test for determining whether a new or modified source is subject to the EPA interpretative regulation [the Offset Ruling] — and to the permit requirements of the revised implementation plans under the conference bill — is whether the source will emit a pollutant into an area which is exceeding a national ambient air quality standard for that pollutant — or precursor. Thus, a new source is still subject to such requirements as `lowest achievable emission rate’ even if it is constructed as a replacement for an older facility resulting in a net reduction from previous emission levels.
“A source — including an existing facility ordered to convert to coal — is subject to all the nonattainment requirements as a modified source if it makes any physical change which increases the amount of any air pollutant for which the standards in the area are exceeded.” 123 Cong. Rec. 26847 (1977).
The Court noted that prior to the 1977 Amendments, the EPA had adhered to a plantwide definition of the term “source” under a NSPS program. After adoption of the 1977 Amendments, proposals for a plantwide definition were considered in at least three formal proceedings.
In January 1979, said the Court, the EPA considered the question whether the same restriction on new construction in nonattainment areas that had been included in its December 1976 Ruling should be required in the revised SIP’s that were scheduled to go into effect in July 1979. After noting that the 1976 Ruling was ambiguous on the question “whether a plant with a number of different processes and emission points would be considered a single source,” 44 Fed. Reg. 3276 (1979), the EPA, in effect, provided a bifurcated answer to that question. In those areas that did not have a revised SIP in effect by July 1979, the EPA rejected the plantwide definition; on the other hand, it expressly concluded that the plantwide approach would be permissible in certain circumstances if authorized by an approved SIP. It stated:
“Where a state implementation plan is revised and implemented to satisfy the requirements of Part D, including the reasonable further progress requirement, the plan requirements for major modifications may exempt modifications of existing facilities that are accompanied by intrasource offsets so that there is no net increase in emissions. The agency endorses such exemptions, which would provide greater flexibility to sources to effectively manage their air emissions at least cost.” Ibid.[26]
Id. at 855. In April, and again in September 1979, the EPA published additional comments in which it indicated that revised SIP’s could adopt the plantwide definition of source in nonattainment areas in certain circumstances. See id., at 20372, 20379, 51924, 51951, 51958. On the latter occasion, the EPA made a formal rulemaking proposal that would have permitted the use of the “bubble concept” for new installations within a plant as well as for modifications of existing units. It explained:
” `Bubble’ Exemption: The use of offsets inside the same source is called the `bubble.’ EPA proposes use of the definition of `source’ (see above) to limit the use of the bubble under nonattainment requirements in the following respects:
“i. Part D SIPs that include all requirements needed to assure reasonable further progress and attainment by the deadline under section 172 and that are being carried out need not restrict the use of a plantwide bubble, the same as under the PSD proposal.
“ii. Part D SIPs that do not meet the requirements specified must limit use of the bubble by including a definition of `installation’ as an identifiable piece of process equipment.”[27]
Id. at 856. Significantly, said the Court, the EPA expressly noted that the word “source” might be given a plantwide definition for some purposes and a narrower definition for other purposes. It wrote:
“Source means any building structure, facility, or installation which emits or may emit any regulated pollutant. `Building, structure, facility or installation’ means plant in PSD areas and in nonattainment areas except where the growth prohibitions would apply or where no adequate SIP exists or is being carried out.” Id., at 51925.[28]
The EPA’s summary of its proposed Ruling discloses a flexible rather than rigid definition of the term “source” to implement various policies and programs:
“In summary, EPA is proposing two different ways to define source for different kinds of NSR programs:
“(1) For PSD and complete Part D SIPs, review would apply only to plants, with an unrestricted plant-wide bubble.
“(2) For the offset ruling, restrictions on construction, and incomplete Part D SIPs, review would apply to both plants and individual pieces of process equipment, causing the plant-wide bubble not to apply for new and modified major pieces of equipment.
“In addition, for the restrictions on construction, EPA is proposing to define `major modification’ so as to prohibit the bubble entirely. Finally, an alternative discussed but not favored is to have only pieces of process equipment reviewed, resulting in no plant-wide bubble and allowing minor pieces of equipment to escape NSR regardless of whether they are within a major plant.” Id., at 51934.
Id. at 856-857.
In August 1980, however, the EPA adopted a regulation that, in essence, applied the basic reasoning of the Court of Appeals in the Chevron cases. The EPA took particular note of the two then-recent Court of Appeals decisions, which had created the bright-line rule that the “bubble concept” should be employed in a program designed to maintain air quality but not in one designed to enhance air quality. Relying heavily on those cases, EPA adopted a dual definition of “source” for nonattainment areas that required a permit whenever a change in either the entire plant, or one of its components, would result in a significant increase in emissions even if the increase was completely offset by reductions elsewhere in the plant. The EPA expressed the opinion that this interpretation was “more consistent with congressional intent” than the plantwide definition because it “would bring in more sources or modifications for review,” 45 Fed. Reg. 52697 (1980), but its primary legal analysis was predicated on the two Court of Appeals decisions.
In 1981, noted the Court, a new administration (Reagan) took office and initiated a “Government-wide reexamination of regulatory burdens and complexities.” 46 Fed. Reg. 16281. In the context of that review, Reagan’s EPA reevaluated the various arguments that had been advanced in connection with the proper definition of the term “source” and concluded that the term should be given the same definition in both nonattainment areas and PSD areas.
In explaining its conclusion, the EPA first noted that the definitional issue was not squarely addressed in either the statute or its legislative history and therefore that the issue involved an agency “judgment as how to best carry out the Act.” Ibid. It then set forth several reasons for concluding that the plantwide definition was more appropriate. It pointed out that the dual definition “can act as a disincentive to new investment and modernization by discouraging modifications to existing facilities” and “can actually retard progress in air pollution control by discouraging replacement of older, dirtier processes or pieces of equipment with new, cleaner ones.” Ibid. Moreover, the new definition “would simplify EPA’s rules by using the same definition of `source’ for PSD, nonattainment new source review and the construction moratorium. This reduces confusion and inconsistency.” Ibid. Finally, the agency explained that additional requirements that remained in place would accomplish the fundamental purposes of achieving attainment with NAAQS’s as expeditiously as possible. These conclusions were expressed in a proposed rulemaking in August 1981 that was formally promulgated in October. See id., at 50766.
The respondents in Chevron expressly rejected the basic rationale of the Court of Appeals’ decision. That court viewed the statutory definition of the term “source” as sufficiently flexible to cover either a plantwide definition, a narrower definition covering each unit within a plant, or a dual definition that could apply to both the entire “bubble” and its components. It interpreted the policies of the statute, however, to mandate the plantwide definition in programs designed to maintain clean air and to forbid it in programs designed to improve air quality. Respondents placed a fundamentally different construction on the statute. They contended that the text of the Act required the EPA to use a dual definition — if either a component of a plant, or the plant as a whole, emits over 100 tons of pollutant, it is a major stationary source. They thus contended that the EPA rules adopted in 1980, insofar as they apply to the maintenance of the quality of clean air, as well as the 1981 rules which apply to nonattainment areas, violated the statute.
Turning to an analysis of the statute, the Court noted that the definition of the term “stationary source” in § 111(a)(3) referred to “any building, structure, facility, or installation” which emits air pollution. See supra, at 846. This definition was applicable only to the NSPS program by the express terms of the statute; the text of the statute did not make this definition applicable to the permit program. Petitioners therefore maintained that there was no statutory language even relevant to ascertaining the meaning of stationary source in the permit program aside from § 302(j), which defined the term “major stationary source.” See supra, at 851. The Court disagreed with Petitioners on this point, reasoning:
The definition In § 302(j) tells us what the word “major” means — a source must emit at least 100 tons of pollution to qualify — but it sheds virtually no light on the meaning of the term “stationary source.” It does equate a source with a facility — a “major emitting facility” and a “major stationary source” are synonymous under § 302(j). The ordinary meaning of the term “facility” is some collection of integrated elements which has been designed and constructed to achieve some purpose. Moreover, it is certainly no affront to common English usage to take a reference to a major facility or a major source to connote an entire plant as opposed to its constituent parts. Basically, however, the language of § 302(j) simply does not compel any given interpretation of the term “source.”
Id. at 860. Respondents recognized that, and hence pointed to § 111(a)(3). Although the definition in that section was not literally applicable to the permit program, said the Court, it shed as much light on the meaning of the word “source” as anything in the statute.
As Respondents pointed out, said the Court, use of the words “building, structure, facility, or installation,” as the definition of source, could be read to impose the permit conditions on an individual building that is a part of a plant. The Court then discussed words:
A “word may have a character of its own not to be submerged by its association.” Russell Motor Car Co. v. United States, 261 U. S. 514, 519 861*861 (1923). On the other hand, the meaning of a word must be ascertained in the context of achieving particular objectives, and the words associated with it may indicate that the true meaning of the series is to convey a common idea. The language may reasonably be interpreted to impose the requirement on any discrete, but integrated, operation which pollutes. This gives meaning to all of the terms — a single building, not part of a larger operation, would be covered if it emits more than 100 tons of pollution, as would any facility, structure, or installation. Indeed, the language itself implies a “bubble concept” of sorts: each enumerated item would seem to be treated as if it were encased in a bubble. While respondents insist that each of these terms must be given a discrete meaning, they also argue that § 111(a)(3) defines “source” as that term is used in § 302(j). The latter section, however, equates a source with a facility, whereas the former defines “source” as a facility, among other items.
Id. at 861.
The Court stated that parsing of general terms in the text of the statute would not reveal an actual intent of Congress, explaining:
We know full well that this language is not dispositive; the terms are overlapping and the language is not precisely directed to the question of the applicability of a given term in the context of a larger operation. To the extent any congressional “intent” can be discerned from this language, it would appear that the listing of overlapping, illustrative terms was intended to enlarge, rather than to confine, the scope of the agency’s power to regulate particular sources in order to effectuate the policies of the Act.
Id. at 862.
Respondents argued that the legislative history and policies of the Act foreclosed the plantwide definition, and that the EPA’s interpretation was not entitled to deference because it represented a sharp break with prior interpretations of the Act.
The Court’s review of the EPA’s varying interpretations of the word “source” — both before and after the 1977 Amendments — convinced the Court that the agency primarily responsible for administering the legislation had consistently interpreted it flexibly — not in a sterile textual vacuum, but in the context of implementing policy decisions in a technical and complex arena, reasoning:
The fact that the agency has from time to time changed its interpretation of the term “source” does not, as respondents argue, lead us to conclude that no deference should be accorded the agency’s interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Moreover, the fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute.
Id. at 863-64. Significantly, said the Court, it was not the agency in 1980, but rather the Court of Appeals, that read the statute inflexibly to command a plantwide definition for programs designed to maintain clean air and to forbid such a definition for programs designed to improve air quality. The distinction the court drew may well be a sensible one, but the Court stated its “labored review of the problem has surely disclosed that it is not a distinction that Congress ever articulated itself, or one that the EPA found in the statute before the courts began to review the legislative work product.” The Court concluded that it was the Court of Appeals, rather than Congress or any of the decisionmakers who are authorized by Congress to administer this legislation, that was primarily responsible for the 1980 position taken by the agency.
The Court also noted that the arguments over policy that were advanced in the parties’ briefs created the impression that respondents were now “waging in a judicial forum a specific policy battle which they ultimately lost in the agency and in the 32 jurisdictions opting for the ‘bubble concept,’ but one which was never waged in the Congress.” Such policy arguments, said the Court, were more properly addressed to legislators or administrators, not to judges.
The Court concluded that the Administrator’s interpretation represented a reasonable accommodation of manifestly competing interests and was entitled to deference, reasoning that the regulatory scheme was technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involved reconciling conflicting policies. Congress intended to accommodate both interests, said the Court, but did not do so itself on the level of specificity presented by the cases. Perhaps, said the Court, Congress consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, said the Court, it mattered not which of these things occurred. The Court continued:
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.
Id. at 866. The Court announced the rule of deference: “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.” Id. Further:
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.” TVA v. Hill, 437 U. S. 153, 195 (1978).
The Court, on the precise issue presented, held that the EPA’s definition of the term “source” was a permissible construction of the statute which sought to accommodate progress in reducing air pollution with economic growth.
Loper Bright
In Loper Bright, the Court noted that the Chevron doctrine required courts to use a two-step framework to interpret statutes administered by federal agencies. After determining that a case satisfied the various preconditions the Court had set for Chevron to apply, a reviewing court had to first assess “whether Congress has directly spoken to the precise question at issue.” Id., at 842, 104 S.Ct. 2778. If, and only if, congressional intent was “clear,” that was the end of the inquiry. Ibid. But if the court determined that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court had to, at Chevron’s second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.” Id., at 843, 104 S.Ct. 2778. The Court described the facts at issue:
Before 1976, unregulated foreign vessels dominated fishing in the international waters off the U. S. coast, which began just 12 nautical miles offshore. See, e.g., S. Rep. No. 94–459, pp. 2–3 (1975). Recognizing the resultant overfishing and the need for sound management of fishery resources, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (MSA). See 90 Stat. 331 (codified as amended at 16 U.S.C. § 1801 et seq.). The MSA and subsequent amendments extended the jurisdiction of the United States to 200 nautical miles beyond the U. S. territorial sea and claimed “exclusive fishery management authority over all fish” within that area, known as the “exclusive economic zone.” § 1811(a); see Presidential Proclamation No. 5030, 3 C.F.R. 22 (1983 Comp.); §§ 101, 102, 90 Stat. 336. The National Marine Fisheries Service (NMFS) administers the MSA under a delegation from the Secretary of Commerce.
The MSA established eight regional fishery management councils composed of representatives from the coastal States, fishery stakeholders, and NMFS. See 16 U.S.C. §§ 1852(a), (b). The councils develop fishery management plans, which NMFS approves and promulgates as final regulations. See §§ 1852(h), 1854(a). In *2255 service of the statute’s fishery conservation and management goals, see § 1851(a), the MSA requires that certain provisions—such as “a mechanism for specifying annual catch limits … at a level such that overfishing does not occur,” § 1853(a)(15)—be included in these plans, see § 1853(a). The plans may also include additional discretionary provisions. See § 1853(b). For example, plans may “prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment,” § 1853(b)(4); “reserve a portion of the allowable biological catch of the fishery for use in scientific research,” § 1853(b)(11); and “prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery,” § 1853(b)(14).
Relevant here, a plan may also require that “one or more observers be carried on board” domestic vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.” § 1853(b)(8). The MSA specifies three groups that must cover costs associated with observers: (1) foreign fishing vessels operating within the exclusive economic zone (which must carry observers), see §§ 1821(h)(1)(A), (h)(4), (h)(6); (2) vessels participating in certain limited access privilege programs, which impose quotas permitting fishermen to harvest only specific quantities of a fishery’s total allowable catch, see §§ 1802(26), 1853a(c)(1)(H), (e)(2), 1854(d)(2); and (3) vessels within the jurisdiction of the North Pacific Council, where many of the largest and most successful commercial fishing enterprises in the Nation operate, see § 1862(a). In the latter two cases, the MSA expressly caps the relevant fees at two or three percent of the value of fish harvested on the vessels. See §§ 1854(d)(2)(B), 1862(b)(2)(E). And in general, it authorizes the Secretary to impose “sanctions” when “any payment required for observer services provided to or contracted by an owner or operator … has not been paid.” § 1858(g)(1)(D).
The MSA did not contain similar terms addressing whether Atlantic herring fishermen could be required to bear costs associated with any observers a plan may mandate. And at one point, NMFS fully funded the observer coverage the New England Fishery Management Council required in its plan for the Atlantic herring fishery. See 79 Fed. Reg. 8792 (2014). In 2013, however, the council proposed amending its fishery management plans to empower it to require fishermen to pay for observers if federal funding became unavailable. Several years later, NMFS promulgated a rule approving the amendment. See 85 Fed. Reg. 7414 (2020).
With respect to the Atlantic herring fishery, the Rule created an industry funded program that aimed to ensure observer coverage on 50 percent of trips undertaken by vessels with certain types of permits. Under that program, vessel representatives had to “declare into” a fishery before beginning a trip by notifying NMFS of the trip and announcing the species the vessel intends to harvest. If NMFS determined that an observer was required, but declined to assign a Government-paid one, the vessel had to contract with and pay for a Government-certified third-party observer. NMFS estimated that the cost of such an observer would be up to $710 per day, reducing annual returns to the vessel owner by up to 20 percent. See id., at 7417–7418.
Petitioners Loper Bright Enterprises, Inc., H&L Axelsson, Inc., Lund Marr Trawlers LLC, and Scombrus One LLC were family businesses that operated in the Atlantic herring fishery. In February 2020, they challenged the Rule under the MSA, 16 U.S.C. § 1855(f), which incorporates the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. In relevant part, they argued that the MSA does not authorize NMFS to mandate that they pay for observers required by a fishery management plan. The District Court granted summary judgment to the Government. It concluded that the MSA authorized the Rule, but noted that even if these petitioners’ “arguments were enough to raise an ambiguity in the statutory text,” deference to the agency’s interpretation would be warranted under Chevron. 544 F.Supp.3d 82, 107 (D.C.C 2021); see id., at 103–107.
A divided panel of the D. C. Circuit affirmed. See 45 F.4th 359 (2022). The majority addressed various provisions of the MSA and concluded that it was not “wholly unambiguous” whether NMFS may require Atlantic herring fishermen to pay for observers. Id., at 366. Because there remained “some question” as to Congress’s intent, id., at 369, the court proceeded to Chevron’s second step and deferred to the agency’s interpretation as a “reasonable” construction of the MSA, 45 F.4th at 370. In dissent, Judge Walker concluded that Congress’s silence on industry funded observers for the Atlantic herring fishery—coupled with the express provision for such observers in other fisheries and on foreign vessels—unambiguously indicated that NMFS lacked the authority to “require [Atlantic herring] fishermen to pay the wages of at-sea monitors.” Id., at 375.
Petitioners Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC owned two vessels that operated in the Atlantic herring fishery: the F/V Relentless and the F/V Persistence. These vessels used small-mesh bottom-trawl gear and could freeze fish at sea, so they could catch more species of fish and take longer trips than other vessels (about 10 to 14 days, as opposed to the more typical 2 to 4). As a result, they generally declared into multiple fisheries per trip so they could catch whatever the ocean offered up. If the vessels declared into the Atlantic herring fishery for a particular trip, they had to carry an observer for that trip if NMFS selected the trip for coverage, even if they ended up harvesting fewer herring than other vessels—or no herring at all.
This set of petitioners, like those in the D. C. Circuit case, filed a suit challenging the Rule as unauthorized by the MSA. The District Court, like the D. C. Circuit, deferred to NMFS’s contrary interpretation under Chevron and thus granted summary judgment to the Government. See 561 F.Supp.3d 226, 234–238 (D.R.I. 2021).
The First Circuit affirmed. See 62 F.4th 621 (2023). It relied on a “default norm” that regulated entities must bear compliance costs, as well as the MSA’s sanctions provision, Section 1858(g)(1)(D). See id., at 629–631. And it rejected petitioners’ argument that the express statutory authorization of three industry funding programs demonstrated that NMFS lacked the broad implicit authority it asserted to impose such a program for the Atlantic herring fishery. See id., at 631–633. The court ultimately concluded that the “[a]gency’s interpretation of its authority to require at-sea monitors who are paid for by owners of regulated vessels does not ‘exceed[ ] the bounds of the permissible.’ ” Id., at 633–634 (quoting Barnhart v. Walton, 535 U.S. 212, 218, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002); alteration in original). In reaching that conclusion, the First Circuit stated *2257that it was applying Chevron’s two-step framework. 62 F.4th at 628. But it did not explain which aspects of its analysis were relevant to which of Chevron’s two steps. Similarly, it declined to decide whether the result was “a product of Chevron step one or step two.” Id., at 634.
Beginning its discussion, the Court observed:
Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear. Cognizant of the limits of human language and foresight, they anticipated that “[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation,” would be “more or less obscure and equivocal, until their meaning” was settled “by a series of particular discussions and adjudications.” The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison).
The Framers also envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” Id., No. 78, at 525 (A. Hamilton). Unlike the political branches, the courts would by design exercise “neither Force nor Will, but merely judgment.” Id., at 523. To ensure the “steady, upright and impartial administration of the laws,” the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches. Id., at 522; see id., at 522–524; Stern v. Marshall, 564 U.S. 462, 484, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011).
The Court, noted the majority, embraced the Framers’ understanding of the judicial function early on. In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177, 2 L.Ed. 60 (1803). And in the following decades, the Court understood “interpret[ing] the laws, in the last resort,” to be a “solemn duty” of the Judiciary. United States v. Dickson, 15 Pet. 141, 162, 10 L.Ed. 689 (1841) (Story, J., for the Court). When the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497, 515, 10 L.Ed. 559 (1840).
The majority recognized that the law allows respect to Executive Branch interpretations of federal statutes:
The Court also recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. For example, in Edwards’ Lessee v. Darby, 12 Wheat. 206, 6 L.Ed. 603 (1827), the Court explained that “[i]n the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.” Id., at 210; see also United States v. Vowell, 5 Cranch 368, 372, 3 L.Ed. 128 (1809) (Marshall, C. J., for the Court).
Such respect, said the Court, was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. See Dickson, 15 Pet. at 161; United States v. Alabama Great Southern R. Co., 142 U.S. 615, 621, 12 S.Ct. 306, 35 L.Ed. 1134 (1892); National Lead Co. v. United States, 252 U.S. 140, 145–146, 40 S.Ct. 237, 64 L.Ed. 496 (1920). That is because “the longstanding ‘practice of the government’ ”—like any other interpretive aid—“can inform [a court’s] determination of ‘what the law is.’ ” NLRB v. Noel Canning, 573 U.S. 513, 525, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014) (first quoting McCulloch v. Maryland, 4 Wheat. 316, 401, 4 L.Ed. 579 (1819); then quoting Marbury, 1 Cranch at 177). The Court also gave “the most respectful consideration” to Executive Branch interpretations simply because “[t]he officers concerned [were] usually able men, and masters of the subject,” who were “[n]ot unfrequently … the draftsmen of the laws they [were] afterwards called upon to interpret.” United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588 (1878); see also Jacobs v. Prichard, 223 U.S. 200, 214, 32 S.Ct. 289, 56 L.Ed. 405 (1912). Respect, however, is not binding deference:
“Respect,” though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge “certainly would not be bound to adopt the construction given by the head of a department.” Decatur, 14 Pet. at 515; see also Burnet v. Chicago Portrait Co., 285 U.S. 1, 16, 52 S.Ct. 275, 76 L.Ed. 587 (1932). Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in cases where [a court’s] own judgment … differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.” Dickson, 15 Pet. at 162.
The New Deal, said the Court, ushered in a “rapid expansion of the administrative process.” United States v. Morton Salt Co., 338 U.S. 632, 644, 70 S.Ct. 357, 94 L.Ed. 401 (1950). But as new agencies with new powers proliferated, the Court continued to adhere to the traditional understanding that questions of law were for courts to decide, exercising independent judgment.
During this period, said the Court, the Court often treated agency determinations of fact as binding on the courts, provided that there was “evidence to support the findings.” St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51, 56 S.Ct. 720, 80 L.Ed. 1033 (1936). “When the legislature itself acts within the broad field of legislative discretion,” the Court reasoned, “its determinations are conclusive.” Ibid. Congress could therefore “appoint[ ] an agent to act within that sphere of legislative authority” and “endow the agent with power to make findings of fact which are conclusive, provided the requirements of due process which are specially applicable to such an agency are met, as in according a fair hearing and acting upon evidence and not arbitrarily.” Ibid. (emphasis added).
But the Court did not extend similar deference to agency resolutions of questions of law. It instead made clear, repeatedly, that “[t]he interpretation of the meaning of statutes, as applied to justiciable controversies,” was “exclusively a judicial function.” United States v. American Trucking Assns., Inc., 310 U.S. 534, 544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); see also Social Security Bd. v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 90 L.Ed. 718 (1946); Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 681–682, n. 1, 64 S.Ct. 830, 88 L.Ed. 1007 (1944). The Court understood, in the words of Justice Brandeis, that “[t]he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied.” St. Joseph Stock Yards, 298 U.S. at 84, 56 S.Ct. 720 (concurring opinion). It also continued to note, as it long had, that the informed judgment of the Executive Branch—especially in the form of an interpretation issued contemporaneously with the enactment of the statute—could be entitled to “great weight.” American Trucking Assns., 310 U.S. at 549, 60 S.Ct. 1059.
Perhaps most notably along those lines, said the Court, in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), the Court explained that the “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon … specialized experience,” “constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,” even on legal questions. Id., at 139–140, 65 S.Ct. 161. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id., at 140, 65 S.Ct. 161.
On occasion, the Court noted, the Court applied deferential review upon concluding that a particular statute empowered an agency to decide how a broad statutory term applied to specific facts found by the agency. For example, in Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301 (1941), the Court deferred to an administrative conclusion that a coal-burning railroad that had arrangements with several coal mines was not a coal “producer” under the Bituminous Coal Act of 1937. Congress had “specifically” granted the agency the authority to make that determination. Id., at 411, 62 S.Ct. 326. The Court thus reasoned that “[w]here, as here, a determination has been left to an administrative body, this delegation will be respected and the administrative conclusion left untouched” so long as the agency’s decision constituted “a sensible exercise of judgment.” Id., at 412–413, 62 S.Ct. 326. Similarly, in NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944), the Court deferred to the determination of the National Labor Relations Board that newsboys were “employee[s]” within the meaning of the National Labor Relations Act. The Act had, in the Court’s judgment, “assigned primarily” to the Board the task of marking a “definitive limitation around the term ‘employee.’ ” Id., at 130, 64 S.Ct. 851. The Court accordingly viewed its own role as “limited” to assessing whether the Board’s determination had a “ ‘warrant in the record’ and a reasonable basis in law.” Id., at 131, 64 S.Ct. 851.
Such deferential review, though:
… was cabined to factbound determinations like those at issue in Gray and Hearst. Neither Gray nor Hearst purported to refashion the longstanding judicial approach to questions of law. In Gray, after deferring to the agency’s determination that a particular entity was not a “producer” of coal, the Court went on to discern, based on its own reading of the text, whether another statutory term—“other disposal” of coal—encompassed a transaction lacking a transfer of title. See 314 U.S. at 416–417, 62 S.Ct. 326. The Court evidently perceived no basis for deference to the agency with respect to that pure legal question. And in Hearst, the Court proclaimed that “[u]ndoubtedly questions of statutory interpretation … are for the courts to resolve, giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute.” 322 U.S. at 130–131, 64 S.Ct. 851. At least with respect to questions it regarded as involving “statutory interpretation,” the Court thus did not disturb the traditional rule. It merely thought that a different approach should apply where application of a statutory term was sufficiently intertwined with the agency’s factfinding.
In any event, said the majority, the Court was far from consistent in reviewing deferentially even such factbound statutory determinations. Often the Court simply interpreted and applied the statute before it. See K. Davis, Administrative Law § 248, p. 893 (1951) (“The one statement that can be made with confidence about applicability of the doctrine of Gray v. Powell is that sometimes the Supreme Court applies it and sometimes it does not.”); B. Schwartz, Gray vs. Powell and the Scope of Review, 54 Mich. L. Rev. 1, 68 (1955) (noting an “embarrassingly large number of Supreme Court decisions that do not adhere to the doctrine of Gray v. Powell”). In one illustrative example, the Court rejected the U. S. Price Administrator’s determination that a particular warehouse was a “public utility” entitled to an exemption from the Administrator’s General Maximum Price Regulation. Despite the striking resemblance of that administrative determination to those that triggered deference in Gray and Hearst, the Court declined to “accept the Administrator’s view in deference to administrative construction.” Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 88 L.Ed. 635 (1944). The Administrator’s view, the Court explained, had “hardly seasoned or broadened into a settled administrative practice,” and thus did not “overweigh the considerations” the Court had “set forth as to the proper construction of the statute.” Ibid.
Nothing in the New Deal era or before it, said the Court, resembled the deference rule the Court would begin applying decades later to all varieties of agency interpretations of statutes. Instead, just five years after Gray and two after Hearst, Congress codified the opposite rule: the traditional understanding that courts must “decide all relevant questions of law.” 5 U.S.C. § 706.
Congress in 1946, said the Court, enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U.S. at 644, 70 S.Ct. 357. It was the culmination of a “comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670–671, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986).
In addition to prescribing procedures for agency action, the APA delineates the basic contours of judicial review of such action. As relevant here, said the Court, Section 706 directs that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. It further requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be … not in accordance with law.” § 706(2)(A).
The APA thus, said the Court, “codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment.” Further:
It specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, § 706 (emphasis added)—even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential. See § 706(2)(A) (agency action to be set aside if “arbitrary, capricious, [or] an abuse of discretion”); § 706(2)(E) (agency factfinding in formal proceedings to be set aside if “unsupported by substantial evidence”).
In a statute designed to “serve as the fundamental charter of the administrative state,” Kisor v. Wilkie, 588 U.S. 558, 580, 139 S.Ct. 2400, 204 L.Ed.2d 841 (2019) (plurality opinion) (internal quotation marks omitted), said the Court, “Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled pre-APA understanding that deciding such questions was ‘exclusively a judicial function’,” American Trucking Assns., 310 U.S. at 544, 60 S.Ct. 1059. But nothing in the APA, said the Court, hints at such a dramatic departure. On the contrary, said the Court:
… by directing courts to “interpret constitutional and statutory provisions” without differentiating between the two, Section 706 makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference. Under the APA, it thus “remains the responsibility of the court to decide whether the law means what the agency says.” Perez v. Mortgage Bankers Assn., 575 U.S. 92, 109, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015) (Scalia, J., concurring in judgment).4
The text of the APA, said the Court, means what it says:
The APA, in short, incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions. In exercising such judgment, though, courts may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes. Such interpretations “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance” consistent with the APA. Skidmore, 323 U.S. at 140, 65 S.Ct. 161. And interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning. See ibid.; American Trucking Assns., 310 U.S. at 549, 60 S.Ct. 1059.
The Court held that the deference that Chevron required of courts reviewing agency action cannot be squared with the APA. The Court reasoned that Chevron was a departure from the traditional approach:
In the decades between the enactment of the APA and this Court’s decision in Chevron, courts generally continued to review agency interpretations of the statutes they administer by independently examining each statute to determine its meaning. Cf. T. Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 972–975 (1992). As an early proponent (and later critic) of Chevron recounted, courts during this period thus identified delegations of discretionary authority to agencies on a “statute-by-statute basis.” A. Scalia, *2264Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 516.
Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional approach. The question in the case was whether an EPA regulation “allow[ing] States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single ‘bubble’ ” was consistent with the term “stationary source” as used in the Clean Air Act. 467 U.S. at 840, 104 S.Ct. 2778. To answer that question of statutory interpretation, the Court articulated and employed a now familiar two-step approach broadly applicable to review of agency action.
The first step was to discern “whether Congress ha[d] directly spoken to the precise question at issue.” Id., at 842, 104 S.Ct. 2778. The Court explained that “[i]f the intent of Congress is clear, that is the end of the matter,” ibid., and courts were therefore to “reject administrative constructions which are contrary to clear congressional intent,” id., at 843, n. 9, 104 S.Ct. 2778. To discern such intent, the Court noted, a reviewing court was to “employ[ ] traditional tools of statutory construction.” Ibid.
The Court observed that the Chevron opinion did not even mention the APA:
Without mentioning the APA, or acknowledging any doctrinal shift, the Court articulated a second step applicable when “Congress ha[d] not directly addressed the precise question at issue.” Id., at 843, 104 S.Ct. 2778. In such a case—that is, a case in which “the statute [was] silent or ambiguous with respect to the specific issue” at hand—a reviewing court could not “simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Ibid. (footnote omitted). A court instead had to set aside the traditional interpretive tools and defer to the agency if it had offered “a permissible construction of the statute,” ibid., even if not “the reading the court would have reached if the question initially had arisen in a judicial proceeding,” ibid., n. 11. That directive was justified, according to the Court, by the understanding that administering statutes “requires the formulation of policy” to fill statutory “gap[s]”; by the long judicial tradition of according “considerable weight” to Executive Branch interpretations; and by a host of other considerations, including the complexity of the regulatory scheme, EPA’s “detailed and reasoned” consideration, the policy-laden nature of the judgment supposedly required, and the agency’s indirect accountability to the people through the President. Id., at 843, 844, and n. 14, 865, 104 S.Ct. 2778.
Employing this new test, the Court concluded that Congress had not addressed the question at issue with the necessary “level of specificity” and that EPA’s interpretation was “entitled to deference.” Id., at 865, 104 S.Ct. 2778. It did not matter why Congress, as the Court saw it, had not squarely addressed the question, see ibid., or that “the agency ha[d] from time to time changed its interpretation,” id., at 863, 104 S.Ct. 2778. The latest EPA interpretation was a permissible reading of the Clean Air Act, so under the Court’s new rule, that reading controlled.
The Court also observed that Chevron itself was not seen as a watershed decision when it was issued:
Initially, Chevron “seemed destined to obscurity.” T. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 276 (2014). The Court did not at first treat it as the watershed decision it was fated to become; it was hardly cited in cases involving statutory questions of agency authority. See ibid. But within a few years, both this Court and the courts of appeals were routinely invoking its two-step framework as the governing standard in such cases. See id., at 276–277. As the Court did so, it revisited the doctrine’s justifications. Eventually, the Court decided that Chevron rested on “a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740–741, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996); see also, e.g., Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. 261, 276–277, 136 S.Ct. 2131, 195 L.Ed.2d 423 (2016); Utility Air Regulatory Group v. EPA, 573 U.S. 302, 315, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014); National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).
The Court noted that neither Chevron nor any subsequent decision of the Court attempted to reconcile its framework with the APA. The “law of deference” that the Court had built on the foundation laid in Chevron had instead been “[h]eedless of the original design” of the APA. Perez, 575 U.S. at 109, 135 S.Ct. 1199 (Scalia, J., concurring in judgment). The problem was explained by the Court:
Chevron defies the command of the APA that “the reviewing court”—not the agency whose action it reviews—is to “decide all relevant questions of law” and “interpret … statutory provisions.” § 706 (emphasis added). It requires a court to ignore, not follow, “the reading the court would have reached” had it exercised its independent judgment as required by the APA. Chevron, 467 U.S. at 843, n. 11, 104 S.Ct. 2778. And although exercising independent judgment is consistent with the “respect” historically given to Executive Branch interpretations, see, e.g., Edwards’ Lessee, 12 Wheat. at 210; Skidmore, 323 U.S. at 140, 65 S.Ct. 161, Chevron insists on much more. It demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time. See 467 U.S. at 863, 104 S.Ct. 2778. Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else—unless the prior court happened to also say that the statute is “unambiguous.” Brand X, 545 U.S. at 982, 125 S.Ct. 2688. That regime is the antithesis of the time honored approach the APA prescribes. In fretting over the prospect of “allow[ing]” a judicial interpretation of a statute “to override an agency’s” in a dispute before a court, ibid., Chevron turns the statutory scheme for judicial review of agency action upside down.
Chevron cannot be reconciled with the APA, said the Court, by presuming that statutory ambiguities are implicit delegations to agencies. See Brief for Respondents in No. 22–1219, pp. 13, 37–38; post, at 2295 – 2302 (opinion of KAGAN, J.). Presumptions have their place in statutory interpretation, said the Court, but only to the extent that they approximate reality. Chevron’s presumption does not, because “[a]n ambiguity is simply not a delegation of law-interpreting power. Chevron confuses the two.” C. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 445 (1989). The Court reasoned:
As Chevron itself noted, ambiguities may result from an inability on the part of Congress to squarely answer the question at hand, or from a failure to even “consider the question” with the requisite precision. 467 U.S. at 865, 104 S.Ct. 2778. In neither case does an ambiguity necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. And many or perhaps most statutory ambiguities may be unintentional. As the Framers recognized, ambiguities will inevitably follow from “the complexity of objects, … the imperfection of the human faculties,” and the simple fact that “no language is so copious as to supply words and phrases for every complex idea.” The Federalist No. 37, at 236.
The Court recognized that courts deal with statutory ambiguities regularly:
Courts, after all, routinely confront statutory ambiguities in cases having nothing to do with Chevron—cases that do not involve agency interpretations or delegations of authority. Of course, when faced with a statutory ambiguity in such a case, the ambiguity is not a delegation to anybody, and a court is not somehow relieved of its obligation to independently interpret the statute. Courts in that situation do not throw up their hands because “Congress’s instructions have” supposedly “run out,” leaving a statutory “gap.” Post, at 2294 (opinion of KAGAN, J.). Courts instead understand that such statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning. That is the whole point of having written statutes; “every statute’s meaning is fixed at the time of enactment.” Wisconsin Central Ltd. v. United States, 585 U.S. 274, 284, 138 S.Ct. 2067, 201 L.Ed.2d 490 (2018) (emphasis deleted). So instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity.
Further, the majority recognized that courts determined the law and that means reaching the best result, not approving merely permissible interpretations of an agency that change with each new administration:
In an agency case as in any other, though, even if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same—“the reading the court would have reached” if no agency were involved. Chevron, 467 U.S. at 843, n. 11, 104 S.Ct. 2778. It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.
Perhaps most fundamentally, said the Court:
… Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers, as noted, anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. And even Chevron itself reaffirmed that “[t]he judiciary is the final authority on issues of statutory construction” and recognized that “in the absence of an administrative interpretation,” it is “necessary” for a court to “impose its own construction on the statute.” Id., at 843, and n. 9, 104 S.Ct. 2778. Chevron gravely erred, though, in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction—the tools courts use every day—is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.
The Government responded that Congress must generally intend for agencies to resolve statutory ambiguities because agencies have subject matter expertise regarding the statutes they administer; because deferring to agencies purportedly promotes the uniform construction of federal law; and because resolving statutory ambiguities can involve policymaking best left to political actors, rather than courts. See Brief for Respondents in No. 22–1219, pp. 16–19. The dissent offered more of the same. See post, at 2298 – 2301. But none of these considerations, concluded the Court, justified Chevron’s sweeping presumption of congressional intent.
Beginning with expertise, the Court noted that interpretive issues arising in connection with a regulatory scheme often “may fall more naturally into a judge’s bailiwick” than an agency’s. Kisor, 588 U.S. at 578, 139 S.Ct. 2400 (opinion of the Court). The Court has observed that “[w]hen the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.” Ibid. The Court described the problem:
Chevron’s broad rule of deference, though, demands that courts presume just the opposite. Under that rule, ambiguities of all stripes trigger deference. Indeed, the Government and, seemingly, the dissent continue to defend the proposition that Chevron applies even in cases having little to do with an agency’s technical subject matter expertise. See Brief for Respondents in No. 221219, p. 17; post, at 2298 – 2299.
Id. at 2267 (emphasis added). But:
… even when an ambiguity happens to implicate a technical matter, it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to the agency. Congress expects courts to handle technical statutory questions. “[M]any statutory cases” call upon “courts [to] interpret the mass of technical detail that is the ordinary diet of the law,” Egelhoff v. Egelhoff, 532 U.S. 141, 161, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (Breyer, J., dissenting), and courts did so without issue in agency cases before Chevron, see post, at 2291 – 2292 (GORSUCH, J., concurring). Courts, after all, do not decide such questions blindly. The parties and amici in such cases are steeped in the subject matter, and reviewing courts have the benefit of their perspectives. In an agency case in particular, the court will go about its task with the agency’s “body of experience and informed judgment,” among other information, at its disposal. Skidmore, 323 U.S. at 140, 65 S.Ct. 161. And although an agency’s interpretation of a statute “cannot bind a court,” it may be especially informative “to the extent it rests on factual premises within [the agency’s] expertise.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 98, n. 8, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983). Such expertise has always been one of the factors which may give an Executive Branch interpretation particular “power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161; see, e.g., County of Maui v. Hawaii Wildlife Fund, 590 U.S. 165, 180, 140 S.Ct. 1462, 206 L.Ed.2d 640 (2020); Moore, 95 U.S. at 763.
Id. For those reasons, said the Court, delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise. The better presumption, concluded the Court, is that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are, of course, always free to act by revising the statute.
Nor, said the Court, does a desire for the uniform construction of federal law justify Chevron. Given inconsistencies in how judges apply Chevron:
… it is unclear how much the doctrine as a whole (as opposed to its highly deferential second step) actually promotes such uniformity. In any event, there is little value in imposing a uniform interpretation of a statute if that interpretation is wrong. We see no reason to presume that Congress prefers uniformity for uniformity’s sake over the correct interpretation of the laws it enacts.
Id. (emphasis added). Moreover:
The view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken, for it rests on a profound misconception of the judicial role. It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation. That task does not suddenly become policymaking just because a court has an “agency to fall back on.” Kisor, 588 U.S. at 575, 139 S.Ct. 2400 (opinion of the Court). Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences. Indeed, the Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches. See The Federalist, No. 78, at 522–525. They were to construe the law with “[c]lear heads … and honest hearts,” not with an eye to policy preferences that had not made it into the statute. 1 Works of James Wilson 363 (J. Andrews ed. 1896).
Id. (emphasis added). That is not to say, said the Court, that Congress cannot or does not confer discretionary authority on agencies. Congress may do so, subject to constitutional limits, and it often has. But to stay out of discretionary policymaking left to the political branches, said the Court, judges need only fulfill their obligations under the APA to independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA. The Court stated the fundamental problem with Chevron:
By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron does not prevent judges from making policy. It prevents them from judging.
Id. at 2268.
In truth, said the Court, Chevron’s justifying presumption was, as Members of the Court had often recognized, a fiction. See Buffington v. McDonough, 598 U. S. ––––, ––––, 143 S.Ct. 14, 19–20, 214 L.Ed.2d 206 (2022) (GORSUCH, J., dissenting from denial of certiorari); Cuozzo, 579 U.S. at 286, 136 S.Ct. 2131 (THOMAS, J., concurring); Scalia, 1989 Duke L. J., at 517; see also post, at 2301 – 2302 (opinion of KAGAN, J.). So, said the Court:
… we have spent the better part of four decades imposing one limitation on Chevron after another, pruning its presumption on the understanding that “where it is in doubt that Congress actually intended to delegate particular interpretive authority to an agency, Chevron is ‘inapplicable.’ ” United States v. Mead Corp., 533 U.S. 218, 230, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Christensen v. Harris County, 529 U.S. 576, 597, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (Breyer, J., dissenting)); see also Adams Fruit Co. v. Barrett, 494 U.S. 638, 649, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990).
Consider the many refinements we have made in an effort to match Chevron’s presumption to reality. We have said that Chevron applies only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead, 533 U.S. at 226–227, 121 S.Ct. 2164. In practice, that threshold requirement—sometimes called Chevron “step zero”—largely limits Chevron to “the fruits of notice-and-comment rulemaking or formal adjudication.” 533 U.S. at 230, 121 S.Ct. 2164. But even when those processes are used, deference is still not warranted “where the regulation is ‘procedurally defective’—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 220, 136 S.Ct. 2117, 195 L.Ed.2d 382 (2016) (quoting Mead, 533 U.S. at 227, 121 S.Ct. 2164).
Id. at 2268-69. Even where those procedural hurdles were cleared, substantive ones remained. Most notably, said the Court:
Chevron does not apply if the question at issue is one of “deep ‘economic and political significance.’ ” King v. Burwell, 576 U.S. 473, 486, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015). We have instead expected Congress to delegate such authority “expressly” if at all, ibid., for “[e]xtraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s],’ ” West Virginia v. EPA, 597 U.S. 697, 723, 142 S.Ct. 2587, ––– L.Ed.2d –––– (2022) (quoting Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001); alteration in original). Nor have we applied Chevron to agency interpretations of judicial review provisions, see Adams Fruit Co., 494 U.S. at 649–650, 110 S.Ct. 1384, or to statutory schemes not administered by the agency seeking deference, see Epic Systems Corp. v. Lewis, 584 U.S. 497, 519–520, 138 S.Ct. 1612, 200 L.Ed.2d 889 (2018). And we have sent mixed signals on whether Chevron applies when a statute has criminal applications. Compare Abramski v. United States, 573 U.S. 169, 191, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014), with Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 704, n. 18, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995).
Id. at 2269. Confronted with this byzantine set of preconditions and exceptions, said the Court, some courts had simply bypassed Chevron, saying it made no difference for one reason or another. And even when they did invoke Chevron, courts did not always heed the various steps and nuances of that evolving doctrine. In one of the cases before the Court in Loper Bright itself, noted the Court, the First Circuit both skipped “step zero,” see 62 F.4th at 628, and refused to “classify [its] conclusion as a product of Chevron step one or step two”—though it ultimately appeared to have deferred under step two, id., at 634.
The Supreme Court, noted the majority, had not deferred to an agency interpretation under Chevron since 2016. See Cuozzo, 579 U.S. at 280, 136 S.Ct. 2131 (most recent occasion). But Chevron remained on the books. So litigants were forced to continue to wrestle with it, and lower courts—bound by even the Court’s crumbling precedents, see Agostini v. Felton, 521 U.S. 203, 238, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)—understandably continued to apply it. In short, said the Court:
The experience of the last 40 years has thus done little to rehabilitate Chevron. It has only made clear that Chevron’s fictional presumption of congressional intent was always unmoored from the APA’s demand that courts exercise independent judgment in construing statutes administered by agencies. At best, our intricate Chevron doctrine has been nothing more than a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA by yielding to an agency the express responsibility, vested in “the reviewing court,” to “decide all relevant questions of law” and “interpret … statutory provisions.” § 706 (emphasis added).
Id. (emphasis added).
The only question left was whether stare decisis, the doctrine governing judicial adherence to precedent, required the Court to persist in the Chevron project. It did not:
Stare decisis is not an “inexorable command,” Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), and the stare decisis considerations most relevant here—“the quality of [the precedent’s] reasoning, the workability of the rule it established, … and reliance on the decision,” Knick v. Township of Scott, 588 U.S. 180, 203, 139 S.Ct. 2162, 204 L.Ed.2d 558 (2019) (quoting Janus v. State, County, and Municipal Employees, 585 U.S. 878, 917, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018))—all weigh in favor of letting Chevron go.
Id. The Court further explained:
Chevron has proved to be fundamentally misguided. Despite reshaping judicial review of agency action, neither it nor any case of ours applying it grappled with the APA—the statute that lays out how such review works. Its flaws were nonetheless apparent from the start, prompting this Court to revise its foundations and continually limit its application. It has launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning. And Members of this Court have long questioned its premises. See, e.g., Pereira v. Sessions, 585 U.S. 198, 219–221, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018) (Kennedy, J., concurring); Michigan, 576 U.S. at 760–764, 135 S.Ct. 2699 (THOMAS, J., concurring); Buffington, 598 U. S. ––––, 143 S.Ct. 14, 214 L.Ed.2d 206 (opinion of GORSUCH, J.); B. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150–2154 (2016). Even Justice Scalia, an early champion of Chevron, came to seriously doubt whether it could be reconciled with the APA. See Perez, 575 U.S. at 109–110, 135 S.Ct. 1199 (opinion concurring in judgment). For its entire existence, Chevron has been a “rule in search of a justification,” Knick, 588 U.S. at 204, 139 S.Ct. 2162, if it was ever coherent enough to be called a rule at all.
Id. Experience, said the Court, had also shown that Chevron was unworkable. The defining feature of its framework was the identification of statutory ambiguity, which requires deference at the doctrine’s second step. But the concept of ambiguity has always evaded meaningful definition. As Justice Scalia put the dilemma just five years after Chevron was decided: “How clear is clear?” 1989 Duke L. J., at 521.
The Court stated:
We are no closer to an answer to that question than we were four decades ago. “ ‘[A]mbiguity’ is a term that may have different meanings for different judges.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 572, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (Stevens, J., dissenting). One judge might see ambiguity everywhere; another might never encounter it. Compare L. Silberman, Chevron—The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 822 (1990), with R. Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 323 (2017). A rule of law that is so wholly “in the eye of the beholder,” Exxon Mobil Corp., 545 U.S. at 572, 125 S.Ct. 2611 (Stevens, J., dissenting), invites different results in like cases and is therefore “arbitrary in practice,” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 283, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). Such an impressionistic and malleable concept “cannot stand as an every-day test for allocating” interpretive authority between courts and agencies. Swift & Co. v. Wickham, 382 U.S. 111, 125, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).
Id. The dissent, said the Court, proved the point:
It tells us that a court should reach Chevron’s second step when it finds, “at the end of its interpretive work,” that “Congress has left an ambiguity or gap.” Post, at 2294. (The Government offers a similar test. See Brief for Respondents in No. 22–1219, pp. 7, 10, 14; Tr. of Oral Arg. 113–114, 116.) That is no guide at all. Once more, the basic nature and meaning of a statute does not change when an agency happens to be involved. Nor does it change just because the agency has happened to offer its interpretation through the sort of procedures necessary to obtain deference, or because the other preconditions for Chevron happen to be satisfied. The statute still has a best meaning, necessarily discernible by a court deploying its full interpretive toolkit. So for the dissent’s test to have any meaning, it must think that in an agency case (unlike in any other), a court should give up on its “interpretive work” before it has identified that best meaning. But how does a court know when to do so? On that point, the dissent leaves a gap of its own. It protests only that some other interpretive tools—all with pedigrees more robust than Chevron’s, and all designed to help courts identify the meaning of a text rather than allow the Executive Branch to displace it—also apply to ambiguous texts. See post, at 2308 – 2309. That this is all the dissent can come up with, after four decades of judicial experience attempting to identify ambiguity under Chevron, reveals the futility of the exercise.
Because Chevron in its original, two-step form was so indeterminate and sweeping, the Court had instead been forced to clarify the doctrine again and again. The Court’s attempts to do so had only added to Chevron’s unworkability, transforming the original two-step into a dizzying breakdance. See Adams Fruit Co., 494 U.S. at 649–650, 110 S.Ct. 1384; Mead, 533 U.S. at 226–227, 121 S.Ct. 2164; King, 576 U.S. at 486, 135 S.Ct. 2480; Encino Motorcars, 579 U.S. at 220, 136 S.Ct. 2117; Epic Systems, 584 U.S. at 519–520, 138 S.Ct. 1612; on and on. And the doctrine continued to spawn difficult threshold questions that promised to further complicate the inquiry should Chevron be retained. See, e.g., Cargill v. Garland, 57 F.4th 447, 465–468 (CA5 2023) (plurality opinion) (May the Government waive reliance on Chevron? Does Chevron apply to agency interpretations of statutes imposing criminal penalties? Does Chevron displace the rule of lenity?), aff’d, 602 U. S. 406, 144 S.Ct. 1613, ––– L.Ed.2d –––– (2024).
Four decades after its inception, said the Court, Chevron had thus become an impediment, rather than an aid, to accomplishing the basic judicial task of “say[ing] what the law is.” Marbury, 1 Cranch at 177. And its continuing import was far from clear. Courts had often declined to engage with the doctrine, saying it makes no difference. See n. 7, supra. And as noted, the Supreme Court had avoided deferring under Chevron since 2016. That trend was nothing new; for decades, the Court had often declined to invoke Chevron even in those cases where it might appear to be applicable. See W. Eskridge & L. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan, 96 Geo. L. J. 1083, 1125 (2008). At this point, said the Court, “all that remains of Chevron is a decaying husk with bold pretensions.”
Nor, said the Court, had Chevron been the sort of “ ‘stable background’ rule” that fosters meaningful reliance. Post, at 2298, n. 1 (opinion of KAGAN, J.) (quoting Morrison v. National Australia Bank Ltd., 561 U.S. 247, 261, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010)). Given the Court’s constant tinkering with and eventual turn away from Chevron, and its inconsistent application by the lower courts, it instead was hard to see how anyone—Congress included—could reasonably expect a court to rely on Chevron in any particular case. And even if it were possible to predict accurately when courts will apply Chevron, the doctrine “does not provide ‘a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced.’ ” Janus, 585 U.S. at 927, 138 S.Ct. 2448 (quoting South Dakota v. Wayfair, Inc., 585 U.S. 162, 186, 138 S.Ct. 2080, 201 L.Ed.2d 403 (2018)). To plan on Chevron yielding a particular result is to gamble not only that the doctrine will be invoked, but also that it will produce readily foreseeable outcomes and the stability that comes with them. History, said the Court, had proved neither bet to be a winning proposition.
Rather than safeguarding reliance interests, said the Court:
… Chevron affirmatively destroys them. Under Chevron, a statutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes, with “[u]nexplained inconsistency” being “at most … a reason for holding an interpretation to be … arbitrary and capricious.” Brand X, 545 U.S. at 981, 125 S.Ct. 2688. But statutory ambiguity, as we have explained, is not a reliable indicator of actual delegation of discretionary authority to agencies. Chevron thus allows agencies to change course even when Congress has given them no power to do so. By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty.
Chevron accordingly had undermined the very “rule of law” values that stare decisis exists to secure. Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014). And it could not be constrained by admonishing courts to be extra careful, or by tacking on a new batch of conditions. The Court would need to once again “revis[e] its theoretical basis … in order to cure its practical deficiencies.” Montejo v. Louisiana, 556 U.S. 778, 792, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). Stare decisis did not, said the Court, require the Court to do so, “especially because any refinements we might make would only point courts back to their duties under the APA to ‘decide all relevant questions of law’ and ‘interpret … statutory provisions.’” § 706. Nor was there any reason to wait helplessly for Congress to correct the Court’s mistake. The Court has jettisoned many precedents that Congress likewise could have legislatively overruled. See, e.g., Patterson v. McLean Credit Union, 485 U.S. 617, 618, 108 S.Ct. 1419, 99 L.Ed.2d 879 (1988) (per curiam) (collecting cases). And part of “judicial humility,” said the Court, is admitting and in certain cases correcting the Court’s own mistakes, especially when those mistakes are serious. Id. In short, said the Court:
This is one of those cases. Chevron was a judicial invention that required judges to disregard their statutory duties. And the only way to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,” Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), is for us to leave Chevron behind.
Id. The Court squarely addressed the dissent’s (purposeful) confusion:
The dissent ends by quoting Chevron: “ ‘Judges are not experts in the field.’ ” Post, at 2310 (quoting 467 U.S. at 865, 104 S.Ct. 2778). That depends, of course, on what the “field” is. If it is legal interpretation, that has been, “emphatically,” “the province and duty of the judicial department” for at least 221 years. Marbury, 1 Cranch at 177. The rest of the dissent’s selected epigraph is that judges “ ‘are not part of either political branch.’ ” Post, at 2310 (quoting Chevron, 467 U.S. at 865, 104 S.Ct. 2778). Indeed. Judges have always been expected to apply their “judgment” independent of the political branches when interpreting the laws those branches enact. The Federalist No. 78, at 523. And one of those laws, the APA, bars judges from disregarding that responsibility just because an Executive Branch agency views a statute differently.
In sum:
Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.
Id.
JUSTICE THOMAS CONCURRENCE
Justice Thomas wrote separately to point out that not only was the majority’s analysis under the APA correct, but also the “Chevron doctrine” was unconstitutional:
I write separately to underscore a more fundamental problem: Chevron deference also violates our Constitution’s separation of powers, as I have previously explained at length. See Baldwin, 589 U. S., at –––– – ––––, 140 S.Ct. at 691–92 (dissenting opinion); Michigan v. EPA, 576 U.S. 743, 761–763, 135 S.Ct. 2699, 192 L.Ed.2d 674 (2015) (concurring opinion); see also Perez v. Mortgage Bankers Assn., 575 U.S. 92, 115–118, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015) (opinion concurring in judgment). And, I agree with Justice GORSUCH that we should not overlook Chevron’s constitutional defects in overruling it.* Post, at 2283 – 2286 (concurring opinion). To provide “practical and real protections for individual liberty,” the Framers drafted a Constitution that divides the legislative, executive, and judicial powers between three branches of Government. Perez, 575 U.S. at 118, 135 S.Ct. 1199 (opinion of THOMAS, J.). Chevron deference compromises this separation of powers in two ways. It curbs the judicial power afforded to courts, and simultaneously expands agencies’ executive power beyond constitutional limits.
Chevron compels judges to abdicate their Article III “judicial Power.” § 1. “[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.” Perez, 575 U.S. at 119, 135 S.Ct. 1199 (opinion of THOMAS, J.); accord, post, at 2284 – 2285 (opinion of GORSUCH, J.). The Framers understood that “legal texts … often contain ambiguities,” and that the judicial power included “the power to resolve these ambiguities over time.” Perez, 575 U.S. at 119, 135 S.Ct. 1199 (opinion of THOMAS, J.); accord, ante, at 2257 – 2258. But, under Chevron, a judge must accept an agency’s interpretation of an ambiguous law, even if he thinks another interpretation is correct. Ante, at 2264. Chevrondeference thus prevents judges from exercising their independent judgment to resolve ambiguities. Baldwin, 589 U. S., at ––––, 140 S.Ct. at 691–92 (opinion of THOMAS, J.); see also Michigan, 576 U.S. at 761, 135 S.Ct. 2699 (opinion of THOMAS, J.); see also Perez, 575 U.S. at 123, 135 S.Ct. 1199 (opinion of THOMAS, J.). By tying a judge’s hands, Chevron prevents the Judiciary from serving as a constitutional check on the Executive. It allows “the Executive … to dictate the outcome of cases through erroneous interpretations.” Baldwin, 589 U. S., at ––––, 140 S.Ct. at 692 (opinion of THOMAS, J.); Michigan, 576 U.S. at 763, n. 1, 135 S.Ct. 2699 (opinion of THOMAS, J.); see also Perez, 575 U.S. at 124, 135 S.Ct. 1199 (opinion of THOMAS, J.). Because the judicial power requires judges to exercise their independent judgment, the deference that Chevron requires contravenes Article III’s mandate.
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2247–74 (2024). Moreover, said Justice Thomas:
Chevron deference also permits the Executive Branch to exercise powers not given to it. “When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.” Department of Transportation v. Association of American Railroads, 575 U.S. 43, 68, 135 S.Ct. 1225, 191 L.Ed.2d 153 (2015) (THOMAS, J., concurring in judgment). Because the Constitution gives the Executive Branch only “[t]he executive Power,” executive agencies may constitutionally exercise only that power. Art. II, § 1, cl. 1. But, Chevron gives agencies license to exercise judicial power. By allowing agencies to definitively interpret laws so long as they are ambiguous, Chevron “transfer[s]” the Judiciary’s “interpretive judgment to the agency.” Perez, 575 U.S. at 124, 135 S.Ct. 1199 (opinion of THOMAS, J.); see also Baldwin, 589 U. S., at ––––, 140 S.Ct. at 692 (opinion of THOMAS, J.); Michigan, 576 U.S. at 761–762, 135 S.Ct. 2699 (opinion of THOMAS, J.); post, at 2284 – 2285 (GORSUCH, J., concurring).
Id. at 2274–75. Not only that, said Justice Thomas:
Chevron deference “cannot be salvaged” by recasting it as deference to an agency’s “formulation of policy.” Baldwin, 589 U. S., at ––––, 140 S.Ct. at 691 (opinion of THOMAS, J.) (internal quotation marks omitted). If that were true, Chevron would mean that “agencies are unconstitutionally exercising ‘legislative Powers’ vested in Congress.” Baldwin, 589 U. S., at ––––, 140 S.Ct. at 691 (opinion of THOMAS, J.) (quoting Art. I, § 1). By “giv[ing] the force of law to agency pronouncements on matters of private conduct as to which Congress did not actually have an intent,” Chevron “permit[s] a body other than Congress to perform a function that requires an exercise of legislative power.” Michigan, 576 U.S. at 762, 135 S.Ct. 2699 (opinion of THOMAS, J.) (internal quotation marks omitted). No matter the gloss put on it, Chevron expands agencies’ power beyond the bounds of Article II by permitting them to exercise powers reserved to another branch of Government.
Id. at 2275. In sum, wrote Justice Thomas:
Chevron deference was “not a harmless transfer of power.” Baldwin, 589 U. S., at ––––, 140 S.Ct. at 691 (opinion of THOMAS, J.). “The Constitution carefully imposes structural constraints on all three branches, and the exercise of power free of those accompanying restraints subverts the design of the Constitution’s ratifiers.” Ibid. In particular, the Founders envisioned that “the courts [would] check the Executive by applying the correct interpretation of the law.” Id., at ––––, 140 S.Ct. at 692. Chevron was thus a fundamental disruption of our separation of powers. It improperly strips courts of judicial power by simultaneously increasing the power of executive agencies. By overruling Chevron, we restore this aspect of our separation of powers. To safeguard individual liberty, “[s]tructure is everything.” A. Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 Notre Dame L. Rev. 1417, 1418 (2008). Although the Court finally ends our 40-year misadventure with Chevron deference, its more profound problems should not be overlooked. Regardless of what a statute says, the type of deference required by Chevron violates the Constitution.
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2275 (2024).
JUSTICE GORSUCH CONCURRENCE
Justice Gorsuch also penned a concurrence. He focused on arguing why the doctrine of stare decisis not only allowed but strongly supported the majority’s decision. In short, stare decisis as understood by many modern lawyers is wrong. Although the Court has overruled prior decisions many times, declaring that stare decisis is not an inexorable command many times, dissenting judges still like to point to the nearly-irrelevant doctrine whenever they are in the minority—even though those same judges are sometimes in the majority. In short, stare decisis as some understand it is simply not a relevant consideration, because the role of the Court is to properly decide the law—which is created by the legislature—and prior decisions should be overruled if they are wrong. It really is that simple.
Like Roe v. Wade, the other cases relying on “substantive due process” and other fictional doctrines created by an activist-leftist court trying to reach political results not required by the Constitution or approved by a majority of this country’s voters, it was actually Chevron that was a radical departure from well-settled legal principles.
For a deeper dive into a proper understanding of Constitutional law, see Justice Scalia’s dissent in Obergefell. People who have a proper understanding of the Constitution in our country should be able to say that they care not what the definition of marriage is (they might care, but that’s not the constitutional issue), but they care greatly “who it is that rules over me.” The question is not whether homosexuals are nice people who “have not done anything to me.” The question, fundamentally, is “Who decides–the majority of voters in a given jurisdiction or nine unelected judges?”
Although leftists can hardly believe it, majorities have rights too. Hundreds of decisions the Court issued between 1954 and 2020—taught to law school students as “constitutional law” in classes in which the students are never asked to look at the words of the United States Constitution—were wrongly decided. Despite the wailing and gnashing of teeth from leftists and the media class, all the Court has been doing since President Trump appointed some justices is attempting to reverse obviously wrong leftist-activist cases decided since the Warren era based on judge-made “pronouncements” that find no support in the Constitution. But I digress.
Justice Gorsuch pointed out it was actually Chevron that was a radical departure from well-settled law. Justice Gorsuch noted:
In disputes between individuals and the government about the meaning of a federal law, federal courts have traditionally sought to offer independent judgments about “what the law is” without favor to either side. Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). Beginning in the mid-1980s, however, this Court experimented with a radically different approach. Applying Chevron deference, judges began deferring to the views of executive agency officials about the meaning of federal statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). With time, the error of this approach became widely appreciated. So much so that this Court has refused to apply Chevron deference since 2016. Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding. I write separately to address why the proper application of the doctrine of stare decisis supports that course.
Justice Gorsuch explained the history of the “common law judge”:
Today, the phrase “common law judge” may call to mind a judicial titan of the past who brilliantly devised new legal rules on his own. The phrase “stare decisis” might conjure up a sense that judges who come later in time are strictly bound to follow the work of their predecessors. But neither of those intuitions fairly describes the traditional common-law understanding of the judge’s role or the doctrine of stare decisis.
At common law, a judge’s charge to decide cases was not usually understood as a license to make new law. For much of England’s early history, different rulers and different legal systems prevailed in different regions. As England consolidated into a single kingdom governed by a single legal system, the judge’s task was to examine those pre-existing legal traditions and apply in the disputes that came to him those legal rules that were “common to the whole land and to all Englishmen.” F. Maitland, Equity, Also the Forms of Action at Common Law 2 (1929). That was “common law” judging.
This view of the judge’s role had consequences for the authority due judicial decisions. Because a judge’s job was to find and apply the law, not make it, the “opinion of the judge” and “the law” were not considered “one and the same thing.” 1 W. Blackstone, Commentaries on the Laws of England 71 (1765) (Blackstone) (emphasis deleted). A judge’s decision might bind the parties to the case at hand. M. Hale, The History and Analysis of the Common Law of England 68 (1713) (Hale). But none of that meant the judge had the power to “make a Law properly so called” for society at large, “for that only the King and Parliament can do.” Ibid.
Other consequences followed for the role precedent played in future judicial proceedings. Because past decisions represented something “less than a Law,” they did not bind future judges. Ibid. At the same time, as Matthew Hale put it, a future judge could give a past decision “Weight” as “Evidence” of the law. Ibid. Expressing the same idea, William Blackstone conceived of judicial precedents as “evidence” of “the common law.” 1 Blackstone 69, 71. And much like other forms of evidence, precedents at common law were thought to vary in the weight due them. Some past decisions might supply future courts with considerable guidance. But others might be entitled to lesser weight, not least because judges are no less prone to error than anyone else and they may sometimes “mistake” what the law demands. Id., at 71 (emphasis deleted). In cases like that, both men thought, a future judge should not rotely repeat a past mistake but instead “vindicate” the law “from misrepresentation.” Id., at 70.
(emphasis added). In other words, the very process of arguing using “caselaw” that has been taught to generations of American law students for 100 years is wrong. Just as the U.S. Constitution says, judges decide “cases” and “controversies,” which are real disputes between real parties with a personal stake in the outcome. These decisions, when viewed properly, are decisions on the results of the particular case being decided, but not “pronouncements of the law that apply to all” in the way that legislative statutes are. In other words, judicial decisions, even appellate opinions, are not statutes. It is interesting to note that generations of lawyers and judges have been raised to give too much deference to prior appellate opinions, treating them as announcing law applicable to all, even though courts are not issuing “advisory opinions” or making law in the way the legislature does. This view of “reasoning by analogy” is so engrained into the way law is practiced in this country that I don’t know what the solution is. I doubt enough law deans and professors will read Gorsuch’s concurrence and really understand it or agree with it enough to make any changes any time soon.
A proper return to Anglo-Saxon lawyering would see lawyers argue more without feeling like they have to have a quote a case for every sentence of their briefs. (Justice Scalia wrote a book about this point too, arguing that too many lawyers put quotes around every sentence instead of simply arguing what the law is. You don’t need to quote everything and cite every sentence of your argument to a case. But now I’m giving away one of my secrets as to why judges see my briefs as powerfully written. Hint: remove the quotes and quotes within quotes and brackets and changing of the tenses that are inevitably required when you feel the need to quote everything, and just say what the case said the law is. You’re not plagiarizing; it’s the law.)
Returning to Justice Gorsuch’s concurrence in Loper Bright, the Justice noted:
When examining past decisions as evidence of the law, common law judges did not, broadly speaking, afford overwhelming weight to any “single precedent.” J. Baker, An Introduction to English Legal History 209–210 (5th ed. 2019). Instead, a prior decision’s persuasive force depended in large measure on its “Consonancy and Congruity with Resolutions and Decisions of former Times.” Hale 68. An individual decision might reflect the views of one court at one moment in time, but a consistent line of decisions representing the wisdom of many minds across many generations was generally considered stronger evidence of the law’s meaning. Ibid.
Id. In other words, the wrongly-decided Chevron is outnumbered by many other, properly-decided cases. Further:
With this conception of precedent in mind, Lord Mansfield cautioned against elevating “particular cases” above the “general principles” that “run through the cases, and govern the decision of them.” Rust v. Cooper, 2 Cowp. 629, 632, 98 Eng. Rep. 1277, 1279 (K. B. 1777). By discarding aberrational rulings and pursuing instead the mainstream of past decisions, he observed, the common law tended over time to “wor[k] itself pure.” Omychund v. Barker, 1 Atk. 22, 33, 26 Eng. Rep. 15, 23 (Ch. 1744) (emphasis deleted). Reflecting similar thinking, Edmund Burke offered five principles for the evaluation of past judicial decisions: “They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles.” Speech of Dec. 23, 1790, in 3 The Speeches of the Right Honourable Edmund Burke 513 (1816).
(emphasis added). Not only did different decisions carry different weight, said Justice Gorsuch, so did different language within a decision. An opinion’s holding and the reasoning essential to it (the ratio decidendi) merited careful attention. Dicta, stray remarks, and digressions warranted less weight. See N. Duxbury, The Intricacies of Dicta and Dissent 19–24 (2021) (Duxbury). These were no more than “the vapours and fumes of law.” F. Bacon, The Lord Keeper’s Speech in the Exchequer (1617), in 2 The Works of Francis Bacon 478 (B. Montagu ed. 1887) (Bacon). Justice Gorsuch explained the significance of dicta:
That is not to say those “vapours” were worthless. Often dicta might provide the parties to a particular dispute a “fuller understanding of the court’s decisional path or related areas of concern.” B. Garner et al., The Law of Judicial Precedent 65 (2016) (Precedent). Dicta might also provide future courts with a source of “thoughtful advice.” Ibid. But future courts had to be careful not to treat every “hasty expression … as a serious and deliberate opinion.” Steel v. Houghton, 1 Bl. H. 51, 53, 126 Eng. Rep. 32, 33 (C. P. 1788). To do so would work an “injustice to [the] memory” of their predecessors who could not expect judicial remarks issued in one context to apply perfectly in others, perhaps especially ones they could not foresee. Ibid. Also, the limits of the adversarial process, a distinctive feature of English law, had to be borne in mind. When a single judge or a small panel reached a decision in a case, they did so based on the factual record and legal arguments the parties at hand have chosen to develop. Attuned to those constraints, future judges had to proceed with an open mind to the possibility that different facts and different legal arguments might dictate different outcomes in later disputes. See Duxbury 19–24.
(emphasis added).
Justice Gorsuch also reminded us that there are good reasons to think that the common law’s understandings of judges and precedent outlined above crossed the Atlantic and informed the nature of the “judicial Power” the Constitution vests in federal courts. Art. III, § 1. Justice Gorsuch explained:
Not only was the Constitution adopted against the backdrop of these understandings and, in light of that alone, they may provide evidence of what the framers meant when they spoke of the “judicial Power.” Many other, more specific provisions in the Constitution reflect much the same distinction between lawmaking and lawfinding functions the common law did. The Constitution provides that its terms may be amended only through certain prescribed democratic processes. Art. V. It vests the power to enact federal legislation exclusively in the people’s elected representatives in Congress. Art. I, § 1. Meanwhile, the Constitution describes the judicial power as the power to resolve cases and controversies. Art. III, § 2, cl. 1. As well, it delegates that authority to life-tenured judges, see § 1, an assignment that would have made little sense if judges could usurp lawmaking powers vested in periodically elected representatives. But one that makes perfect sense if what is sought is a neutral party “to interpret and apply” the law without fear or favor in a dispute between others. 2 The Works of James Wilson 161 (J. Andrews ed. 1896) (Wilson); see Osborn v. Bank of United States, 9 Wheat. 738, 866, 6 L.Ed. 204 (1824).
The constrained view of the judicial power that runs through our Constitution carries with it familiar implications, said Justice Gorsuch—ones the framers readily acknowledged:
James Madison, for example, proclaimed that it would be a “fallacy” to suggest that judges or their precedents could “repeal or alter” the Constitution or the laws of the United States. Letter to N. Trist (Dec. 1831), in 9 The Writings of James Madison 477 (G. Hunt ed. 1910). A court’s opinion, James Wilson added, may be thought of as “effective la[w]” “[a]s to the parties.” Wilson 160–161. But as in England, Wilson said, a prior judicial decision could serve in a future dispute only as “evidence” of the law’s proper construction. Id., at 160; accord, 1 J. Kent, Commentaries on American Law 442–443 (1826).
While they screech and wail at recent Court decisions attempting to reverse the lunacy of leftist decisions issued the past 60 years, leftists fail to understand—or at least pretend not to understand—that it was weird decisions like Roe and Obergefell in which a leftist court aggrandized for itself the power of the people and the legislative branch to decide political questions that were radical departures from law finding no support in prior decisions or the written text of the United States Constitution. Justice Gorsuch continued:
The framers also recognized that the judicial power described in our Constitution implies, as the judicial power did in England, a power (and duty) of discrimination when it comes to assessing the “evidence” embodied in past decisions. So, for example, Madison observed that judicial rulings “repeatedly confirmed ” may supply better evidence of the law’s meaning than isolated or aberrant ones. Letter to C. Ingersoll (June 1831), in 4 Letters and Other Writings of James Madison 184 (1867) (emphasis added). Extending the thought, Thomas Jefferson believed it would often take “numerous decisions” for the meaning of new statutes to become truly “settled.” Letter to S. Jones (July 1809), in 12 The Writings of Thomas Jefferson 299 (A. Bergh ed. 1907).
Id. From the start, too, American courts recognized that not everything found in a prior decision was entitled to equal weight. As Chief Justice Marshall warned, “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.” Cohens v. Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257 (1821). To the extent a past court offered views “beyond the case,” those expressions “may be respected” in a later case “but ought not to control the judgment.” Ibid. One “obvious” reason for this, Marshall continued, had to do with the limits of the adversarial process we inherited from England: Only “[t]he question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Id., at 399–400.
Abraham Lincoln, said Justice Gorsuch, championed these traditional understandings in his debates with Stephen Douglas:
Douglas took the view that a single decision of this Court—no matter how flawed—could definitively resolve a contested issue for everyone and all time. Those who thought otherwise, he said, “aim[ed] a deadly blow to our whole Republican system of government.” Speech at Springfield, Ill. (June 26, 1857), *2279 in 2 The Collected Works of Abraham Lincoln 401 (R. Basler ed. 1953) (Lincoln Speech). But Lincoln knew better. While accepting that judicial decisions “absolutely determine” the rights of the parties to a court’s judgment, he refused to accept that any single judicial decision could “fully settl[e]” an issue, particularly when that decision departs from the Constitution. Id., at 400–401. In cases such as these, Lincoln explained, “it is not resistance, it is not factious, it is not even disrespectful, to treat [the decision] as not having yet quite established a settled doctrine for the country.” Id., at 401.
Id. (emphasis added). After the Civil War, the Court echoed some of these same points. It stressed that every statement in a judicial opinion “must be taken in connection with its immediate context,” In re Ayers, 123 U.S. 443, 488, 8 S.Ct. 164, 31 L.Ed. 216 (1887), and stray “remarks” must not be elevated above the written law, see The Belfast, 7 Wall. 624, 641, 19 L.Ed. 266 (1869); see also, e.g., Trebilcock v. Wilson, 12 Wall. 687, 692–693, 20 L.Ed. 460 (1872); Mason v. Eldred, 6 Wall. 231, 236–238, 18 L.Ed. 783 (1868). Here is an amazing point noted by Justice Gorsuch:
During Chief Justice Chase’s tenure, it seems a Justice writing the Court’s majority opinion would generally work alone and present his work orally and in summary form to his colleagues at conference, which meant that other Justices often did not even review the opinion prior to publication. 6 C. Fairman, History of the Supreme Court of the United States 69–70 (1971). The Court could proceed in this way because it understood that a single judicial opinion may resolve a “case or controversy,” and in so doing it may make “effective law” for the parties, but it does not legislate for the whole of the country and is not to be confused with laws that do.
(emphasis added).
From all this, Justice Gorsuch saw at least three lessons about the doctrine of stare decisis relevant to the decision in Loper Bright. Each, said Justice Gorsuch, concerns a form of judicial humility:
First, a past decision may bind the parties to a dispute, but it provides this Court no authority in future cases to depart from what the Constitution or laws of the United States ordain. Instead, the Constitution promises, the American people are sovereign and they alone may, through democratically responsive processes, amend our foundational charter or revise federal legislation. Unelected judges enjoy no such power. Part I–B, supra.
Recognizing as much, this Court has often said that stare decisis is not an “ ‘inexorable command.’ ” State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). And from time to time it has found it necessary to correct its past mistakes. When it comes to correcting errors of constitutional interpretation, the Court has stressed the importance of doing so, for they can be corrected otherwise only through the amendment process. See, e.g., Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S. 230, 248, 139 S.Ct. 1485, 203 L.Ed.2d 768 (2019). When it comes to fixing errors of statutory interpretation, the Court has proceeded perhaps more circumspectly. But in that field, too, it has overruled even longstanding but “flawed” decisions. See, e.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 904, 907, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007).
Recent history illustrates all this. During the tenures of Chief Justices Warren and Burger, it seems this Court overruled an average of around three cases per Term, including roughly 50 statutory precedents between the 1960s and 1980s alone. See W. Eskridge, Overruling Statutory Precedents, 76 Geo. L. J. 1361, 1427–1434 (1988) (collecting cases). Many of these decisions came in settings no less consequential than today’s. In recent years, we have not approached the pace set by our predecessors, overruling an average of just one or two prior decisions each Term. But the point remains: Judicial decisions inconsistent with the written law do not inexorably control.
Second, another lesson tempers the first. While judicial decisions may not supersede or revise the Constitution or federal statutory law, they merit our “respect as embodying the considered views of those who have come before.” Ramos v. Louisiana, 590 U.S. 83, 105, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). As a matter of professional responsibility, a judge must not only avoid confusing his writings with the law. When a case comes before him, he must also weigh his view of what the law demands against the thoughtful views of his predecessors. After all, “[p]recedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” Precedent 9.
Id. Doubtless, said Justice Gorsuch, past judicial decisions may, as they always have, command “greater or less authority as precedents, according to circumstances.” Lincoln Speech 401. But:
… like English judges before us, we have long turned to familiar considerations to guide our assessment of the weight due a past decision. So, for example, as this Court has put it, the weight due a precedent may depend on the quality of its reasoning, its consistency with related decisions, its workability, and reliance interests that have formed around it. See Ramos, 590 U.S. at 106, 140 S.Ct. 1390. The first factor recognizes that the primary power of any precedent lies in its power to persuade—and poorly reasoned decisions may not provide reliable evidence of the law’s meaning. The second factor reflects the fact that a precedent is more likely to be correct and worthy of respect when it reflects the time-tested wisdom of generations than when it sits “unmoored” from surrounding law. Ibid. The remaining factors, like workability and reliance, do not often supply reason enough on their own to abide a flawed decision, for almost any past decision is likely to benefit some group eager to keep things as they are and content with how things work. See, e.g., id., at 108, 140 S.Ct. 1390. But these factors can sometimes serve functions similar to the others, by pointing to clues that may suggest a past decision is right in ways not immediately obvious to the individual judge.
(emphasis added). When asking whether to follow or depart from a precedent, noted Justice Gorsuch, some judges deploy adverbs. They speak of whether or not a precedent qualifies as “demonstrably erroneous,” Gamble v. United States, 587 U.S. 678, 711, 139 S.Ct. 1960, 204 L.Ed.2d 322 (2019) (THOMAS, J., concurring), or “egregiously wrong,” Ramos, 590 U.S. at 121, 140 S.Ct. 1390 (KAVANAUGH, J., concurring in part). But the emphasis the adverb imparts is not meant for dramatic effect:
It seeks to serve instead as a reminder of a more substantive lesson. The lesson that, in assessing the weight due a past decision, a judge is not to be guided by his own impression alone, but must self-consciously test his views against those who have come before, open to the possibility that a precedent might be correct in ways not initially apparent to him.
Further:
Third, it would be a mistake to read judicial opinions like statutes. Adopted through a robust and democratic process, statutes often apply in all their particulars to all persons. By contrast, when judges reach a decision in our adversarial system, they render a judgment based only on the factual record and legal arguments the parties at hand have chosen to develop. A later court assessing a past decision must therefore appreciate the possibility that different facts and different legal arguments may dictate a different outcome. They must appreciate, too, that, like anyone else, judges are “innately digressive,” and their opinions may sometimes offer stray asides about a wider topic that may sound nearly like legislative commands. Duxbury 4. Often, enterprising counsel seek to exploit such statements to maximum effect. See id., at 25. But while these digressions may sometimes contain valuable counsel, they remain “vapours and fumes of law,” Bacon 478, and cannot “control the judgment in a subsequent suit,” Cohens, 6 Wheat. at 399.
Indeed. As the majority noted, Chevron itself did not even mention the Administrative Procedure Act! The quality of the lawyering matters. Judges decide cases and controversies before them, and they do so after receiving the arguments presented by the parties in the case.
These principles, too, have long guided the Court and others. As Judge Easterbrook has put it:
… an “opinion is not a comprehensive code; it is just an explanation for the Court’s disposition. Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration.” United States v. Skoien, 614 F.3d 638, 640 (CA7 2010) (en banc); see also Reiter v. Sonotone Corp., 442 U.S. 330, 341, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (stressing that an opinion is not “a statute,” and its language should not “be parsed” as if it were); Nevada v. Hicks, 533 U.S. 353, 372, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (same). If stare decisis counsels respect for the thinking of those who have come before, it also counsels against doing an “injustice to [their] memory” by overreliance on their every word. Steel, 1 Bl.H. at 53, 126 Eng. Rep., at 33. As judges, “[w]e neither expect nor hope that our successors will comb” through our opinions, searching for delphic answers to matters we never fully explored. Brown v. Davenport, 596 U.S. 118, 141, 142 S.Ct. 1510, 212 L.Ed.2d 463 (2022). To proceed otherwise risks “turn[ing] stare decisis from a tool of judicial humility into one of judicial hubris.” Ibid.
(emphasis added).
Turning directly to the question what stare decisis effect Chevron deference warranted, Justice Gorsuch stated:
… each of these lessons seem to me to weigh firmly in favor of the course the Court charts today: Lesson 1, because Chevron deference contravenes the law Congress prescribed in the Administrative Procedure Act. Lesson 2, because Chevron deference runs against mainstream currents in our law regarding the separation of powers, due process, and centuries-old interpretive rules that fortify those constitutional commitments. And Lesson 3, because to hold otherwise would effectively require us to endow stray statements in Chevron with the authority of statutory language, all while ignoring more considered language in that same decision and the teachings of experience.
Id. at 2281.
Start with Lesson 1, Justice Gorsuch noted:
The Administrative Procedure Act of 1946 (APA) directs a “reviewing court” to “decide all relevant questions of law” and “interpret” relevant “constitutional and statutory provisions.” 5 U.S.C. § 706. When applying Chevron deference, reviewing courts do not interpret all relevant statutory provisions and decide all relevant questions of law. Instead, judges abdicate a large measure of that responsibility in favor of agency officials. Their interpretations of “ambiguous” laws control even when those interpretations are at odds with the fairest reading of the law an independent “reviewing court” can muster. Agency officials, too, may change their minds about the law’s meaning at any time, even when Congress has not amended the relevant statutory language in any way. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982–983, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). And those officials may even disagree with and effectively overrule not only their own past interpretations of a law but a court’s past interpretation as well. Ibid. None of that is consistent with the APA’s clear mandate.
The hard fact is Chevron “did not even bother to cite” the APA, let alone seek to apply its terms. United States v. Mead Corp., 533 U.S. 218, 241, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (Scalia, J., dissenting). Instead, as even its most ardent defenders have conceded, Chevron deference rests upon a “fictionalized statement of legislative desire,” namely, a judicial supposition that Congress implicitly wishes judges to defer to executive agencies’ interpretations of the law even when it has said nothing of the kind. D. Barron & E. Kagan, Chevron’s Nondelegation Doctrine, 2001 S. Ct. Rev. 201, 212 (Kagan) (emphasis added). As proponents see it, that fiction represents a “policy judgmen[t] about what … make[s] for good government.” Ibid. But in our democracy unelected judges possess no authority to elevate their own fictions over the laws adopted by the Nation’s elected representatives. Some might think the legal directive Congress provided in the APA unwise; some might think a different arrangement preferable. See, e.g., post, at 2298 – 2299 (KAGAN, J., dissenting). But it is Congress’s view of “good government,” not ours, that controls.
Lesson 2, said Justice Gorsuch:
… cannot rescue Chevron deference. If stare decisis calls for judicial humility in the face of the written law, it also cautions us to test our present conclusions carefully against the work of our predecessors. At the same time and as we have seen, this second form of humility counsels us to remember that precedents that have won the endorsement of judges across many generations, demonstrated coherence with our broader law, and weathered the tests of time and experience are entitled to greater consideration than those that have not. See Part I, supra. Viewed by each of these lights, the case for Chevron deference only grows weaker still.
Applying these principles, Justice Gorsuch said:
Start with a look to how our predecessors traditionally understood the judicial role in disputes over a law’s meaning. From the Nation’s founding, they considered “[t]he interpretation of the laws” in cases and controversies “the proper and peculiar province of the courts.” The Federalist No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). Perhaps the Court’s most famous early decision reflected exactly that view. There, Chief Justice Marshall declared it “emphatically the province and duty of the judicial department to say what the law is.” Marbury, 1 Cranch at 177. For judges “have neither FORCE nor WILL but merely judgment”—and an obligation to exercise that judgment independently. The Federalist No. 78, at 465. No matter how “disagreeable that duty may be,” this Court has said, a judge “is not at liberty to surrender, or to waive it.” United States v. Dickson, 15 Pet. 141, 162, 10 L.Ed. 689 (1841) (Story, J.). This duty of independent judgment is perhaps “the defining characteristi[c] of Article III judges.” Stern v. Marshall, 564 U.S. 462, 483, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011).
To be sure, said Justice Gorusch, this Court has also long extended “great respect” to the “contemporaneous” and consistent views of the coordinate branches about the meaning of a statute’s terms. Edwards’ Lessee v. Darby, 12 Wheat. 206, 210, 6 L.Ed. 603 (1827); see also McCulloch v. Maryland, 4 Wheat. 316, 401, 4 L.Ed. 579 (1819); Stuart v. Laird, 1 Cranch 299, 309, 2 L.Ed. 115 (1803). But traditionally, that did not mean a court had to “defer” to any “reasonable” construction of an “ambiguous” law that an executive agency might offer. It did not mean that the government could propound a “reasonable” view of the law’s meaning one day, a different one the next, and bind the judiciary always to its latest word. Nor did it mean the executive could displace a pre-existing judicial construction of a statute’s terms, replace it with its own, and effectively overrule a judicial precedent in the process. Put simply, this Court was “not bound” by any and all reasonable “administrative construction[s]” of ambiguous statutes when resolving cases and controversies. Burnet v. Chicago Portrait Co., 285 U.S. 1, 16, 52 S.Ct. 275, 76 L.Ed. 587 (1932). While the executive’s consistent and contemporaneous views warranted respect, they “by no means control[led] the action or the opinion of this court in expounding the law with reference to the rights of parties litigant before them.” Irvine v. Marshall, 20 How. 558, 567, 15 L.Ed. 994 (1858); see also A. Bamzai, *2284 The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908, 987 (2017).
Justice Gorsuch reminded us that Skidmore stated the correct view of “respect” for the executive branch:
Echoing themes that had run throughout our law from its start, Justice Robert H. Jackson wrote for the Court in Skidmore. There, he said, courts may extend respectful consideration to another branch’s interpretation of the law, but the weight due those interpretations must always “depend upon the[ir] thoroughness …, the validity of [their] reasoning, [their] consistency with earlier and later pronouncements, and all those factors which give [them] power to persuade.” Id., at 140, 65 S.Ct. 161. In another case the same year, and again writing for the Court, Justice Jackson expressly rejected a call for a judge-made doctrine of deference much like Chevron, offering that, “[i]f Congress had deemed it necessary or even appropriate” for courts to “defe[r] to administrative construction[,] … it would not have been at a loss for words to say so.” Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 88 L.Ed. 635 (1944).
To the extent proper respect for precedent demands, as it always has, special respect for longstanding and mainstream decisions, said Justice Gorsuch, Chevron scored badly. It represented “not a continuation of a long line of decisions but a break from them.” Worse, it did not merely depart from our precedents. More nearly, Chevron, said Justice Gorsuch, defied them. Justice Gorsuch explained:
Consider next how uneasily Chevron deference sits alongside so many other settled aspects of our law. Having witnessed first-hand King George’s efforts to gain influence and control over colonial judges, see Declaration of Independence ¶ 11, the framers made a considered judgment to build judicial independence into the Constitution’s design. They vested the judicial power in decisionmakers with life tenure. Art. III, § 1. They placed the judicial salary beyond political control during a judge’s tenure. Ibid. And they rejected any proposal that would subject judicial decisions to review by political actors. The Federalist No. 81, at 482; United States v. Hansen, 599 U.S. 762, 786–791, 143 S.Ct. 1932, 216 L.Ed.2d 692 (2023) (THOMAS, J., concurring). All of this served to ensure the same thing: “A fair trial in a fair tribunal.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). One in which impartial judges, not those currently wielding power in the political branches, would “say what the law is” in *2285 cases coming to court. Marbury, 1 Cranch at 177.
Chevron deference undermines all that. It precludes courts from exercising the judicial power vested in them by Article III to say what the law is. It forces judges to abandon the best reading of the law in favor of views of those presently holding the reins of the Executive Branch. It requires judges to change, and change again, their interpretations of the law as and when the government demands. And that transfer of power has exactly the sort of consequences one might expect. Rather than insulate adjudication from power and politics to ensure a fair hearing “without respect to persons” as the federal judicial oath demands, 28 U.S.C. § 453, Chevron deference requires courts to “place a finger on the scales of justice in favor of the most powerful of litigants, the federal government.” Buffington, 598 U. S., at ––––, 143 S.Ct. at 17. Along the way, Chevron deference guarantees “systematic bias” in favor of whichever political party currently holds the levers of executive power. P. Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187, 1212 (2016).
Chevron deference, said Justice Gorsuch, undermines other aspects of our settled law, too:
In this country, we often boast that the Constitution’s promise of due process of law, see Amdts. 5, 14, means that “ ‘no man can be a judge in his own case.’ ” Williams v. Pennsylvania, 579 U.S. 1, 8–9, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016); Calder v. Bull, 3 Dall. 386, 388, 1 L.Ed. 648 (1798) (opinion of Chase, J.). That principle, of course, has even deeper roots, tracing far back into the common law where it was known by the Latin maxim nemo iudex in causa sua. See 1 E. Coke, Institutes of the Laws of England § 212, *141a. Yet, under the Chevron regime, all that means little, for executive agencies may effectively judge the scope of their own lawful powers. See, e.g., Arlington v. FCC, 569 U.S. 290, 296–297, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013).
Traditionally, as well, courts have sought to construe statutes as a reasonable reader would “when the law was made.” Blackstone 59; see United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805). Today, some call this “textualism.” But really it’s a very old idea, one that constrains judges to a lawfinding rather than lawmaking role by focusing their work on the statutory text, its linguistic context, and various canons of construction. In that way, textualism serves as an essential guardian of the due process promise of fair notice. If a judge could discard an old meaning and assign a new one to a law’s terms, all without any legislative revision, how could people ever be sure of the rules that bind them? New Prime Inc. v. Oliveira, 586 U.S. 105, 113, 139 S.Ct. 532, 202 L.Ed.2d 536 (2019). Were the rules otherwise, Blackstone warned, the people would be rendered “slaves to their magistrates.” 4 Blackstone 371.
Yet, said Justice Gorsuch, replace “magistrates” with “bureaucrats,” and Blackstone’s fear becomes reality when courts employ Chevron deference:
Whenever we confront an ambiguity in the law, judges do not seek to resolve it impartially according to the best evidence of the law’s original meaning. Instead, we resort to a far cruder heuristic: “The reasonable bureaucrat always wins.” And because the reasonable bureaucrat may change his mind year-to-year and election-to-election, the people can never know with certainty what new “interpretations” might be used against them. This “fluid” approach to statutory interpretation is “as much a trap for the innocent as the ancient laws of Caligula,” which were posted so high up on the walls and in print so small that ordinary people could never be sure what they required. United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 97 L.Ed. 200 (1952).
(emphasis added). The ancient rule of lenity, said Justice Gorsuch, was still another of Chevron’s victims. Since the founding, American courts have construed ambiguities in penal laws against the government and with lenity toward affected persons. Wooden v. United States, 595 U.S. 360, 388–390, 142 S.Ct. 1063, 212 L.Ed.2d 187 (2022) (GORSUCH, J., concurring in judgment). That principle upholds due process by safeguarding individual liberty in the face of ambiguous laws. Ibid. And it fortifies the separation of powers by keeping the power of punishment firmly “ ‘in the legislative, not in the judicial department.’ ” Id., at 391, 142 S.Ct. 1063 (quoting United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37 (1820)). But power begets power. And pressing Chevron deference as far as it can go, the government has sometimes managed to leverage “ambiguities” in the written law to penalize conduct Congress never clearly proscribed. Compare Guedes v. ATF, 920 F.3d 1, 27–28, 31 (CADC 2019), with Garland v. Cargill, 602 U. S. 604, 144 S.Ct. 1613, ––– L.Ed.2d –––– (2024).
In all these ways, Chevron’s fiction, said Justice Gorsuch, had led us to a strange place:
One where authorities long thought reserved for Article III are transferred to Article II, where the scales of justice are tilted systematically in favor of the most powerful, where legal demands can change with every election even though the laws do not, and where the people are left to guess about their legal rights and responsibilities. So much tension with so many foundational features of our legal order is surely one more sign that we have “taken a wrong turn along the way.” Kisor v. Wilkie, 588 U.S. 558, 607, 139 S.Ct. 2400, 204 L.Ed.2d 841 (2019) (GORSUCH, J., concurring in judgment).5
Finally, said Justice Gorsuch, consider workability and reliance. If these factors may sometimes serve as useful proxies for the question whether a precedent comports with the historic tide of judicial practice or represents an aberrational mistake, they did regarding the Chevron issue:
Take Chevron’s “workability.” Throughout its short life, this Court has been forced to supplement and revise Chevron so many times that no one can agree on how many “steps” it requires, nor even what each of those “steps” entails. Some suggest that the analysis begins with “step zero” (perhaps itself a tell), an innovation that traces to United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292. Mead held that, before even considering whether Chevron applies, a court must determine whether Congress meant to delegate to the agency authority to interpret the law in a given field. 533 U.S. at 226–227, 121 S.Ct. 2164. But that exercise faces an immediate challenge: Because Chevron depends on a judicially implied, rather than a legislatively expressed, delegation of interpretive authority to an executive agency, Part II–A, supra, when should the fiction apply and when not? Mead fashioned a multifactor test for judges to use. 533 U.S. at 229–231, 121 S.Ct. 2164. But that test has proved as indeterminate in application as it was contrived in origin. Perhaps for these reasons, perhaps for others, this Court has sometimes applied Mead and often ignored it. See Brand X, 545 U.S. at 1014, n. 8, 125 S.Ct. 2688 (Scalia, J., dissenting).
Justice Gorsuch continued:
Today’s cases exemplify some of these problems. We have before us two circuit decisions, three opinions, and at least as many interpretive options on the Chevron menu. On the one hand, we have the D. C. Circuit majority, which deemed the Magnuson-Stevens Act “ambiguous” and upheld the agency’s regulation as “ ‘permissible.’ ” 45 F.4th 359, 365 (2022). On the other hand, we have the D. C. Circuit dissent, which argues the statute is “unambiguou[s]” and that it plainly forecloses the agency’s new rule. Id., at 372 (opinion of Walker, J.). And on yet a third hand, we have the First Circuit, which claimed to have identified “clear textual support” for the regulation, yet refused to say whether it would “classify [its] conclusion as a product of Chevron step one or step two.” 62 F.4th 621, 631, 634 (2023). As these cases illustrate, Chevron has turned statutory interpretation into a game of bingo under blindfold, with parties guessing at how many boxes there are and which one their case might ultimately fall in.
Turning from workability to reliance, Justice Gorsuch wrote:
Far from engendering reliance interests, the whole point of Chevron deference is to upset them. Under Chevron, executive officials can replace one “reasonable” interpretation with another at any time, all without any change in the law itself. The result: Affected individuals “can never be sure of their legal rights and duties.” Buffington, 598 U. S., at ––––, 143 S.Ct. at 20.
How bad is the problem? Take just one example. Brand X concerned a law regulating broadband internet services. There, the Court upheld an agency rule adopted by the administration of President George W. Bush because it was premised on a “reasonable” interpretation of the statute. Later, President Barack Obama’s administration rescinded the rule and replaced it with another. Later still, during President Donald J. Trump’s administration, officials replaced that rule with a different one, all before President Joseph R. Biden, Jr.’s administration declared its intention to reverse course for yet a fourth time. See Safeguarding and Securing the Open Internet, 88 Fed. Reg. 76048 (2023); Brand X, 545 U.S. at 981–982, 125 S.Ct. 2688. Each time, the government claimed its new rule was just as “reasonable” as the last. Rather than promoting reliance by fixing the meaning of the law, Chevron deference engenders constant uncertainty and convulsive change even when the statute at issue itself remains unchanged.
Justice Gorsuch noted that ordinary people are the victims of Chevron deference:
Nor are these antireliance harms distributed equally. Sophisticated entities and their lawyers may be able to keep pace with rule changes affecting their rights and responsibilities. They may be able to lobby for new “ ‘reasonable’ ” agency interpretations and even capture the agencies that issue them. Buffington, 598 U. S., at ––––, ––––, 143 S.Ct. 14, 18, 20–21. But ordinary people can do none of those things. They are the ones who suffer the worst kind of regulatory whiplash Chevron invites.
Justice Gorsuch considered a couple of examples:
Thomas Buffington, a veteran of the U. S. Air Force, was injured in the line of duty. For a time after he left the Air Force, the Department of Veterans Affairs (VA) paid disability benefits due him by law. But later the government called on Mr. Buffington to reenter active service. During that period, everyone agreed, the VA could (as it did) suspend his disability payments. After he left active service for a second time, however, the VA turned his patriotism against him. By law, Congress permitted the VA to suspend disability pay only “for any period for which [a servicemember] receives active service pay.” 38 U.S.C. § 5304(c). But the VA had adopted a self-serving regulation requiring veterans to file a form asking for the resumption of their disability pay after a second (or subsequent) stint in active service. 38 C.F.R. § 3.654(b)(2) (2021). Unaware of the regulation, Mr. Buffington failed to reapply immediately. When he finally figured out what had happened and reapplied, the VA agreed to resume payments going forward but refused to give Mr. Buffington all of the past disability payments it had withheld. Buffington, 598 U. S., at –––– – ––––, 143 S.Ct. at 15–16.
Mr. Buffington challenged the agency’s action as inconsistent with Congress’s direction that the VA may suspend disability payments only for those periods when a veteran returns to active service. But armed with Chevron, the agency defeated Mr. Buffington’s claim. Maybe the self-serving regulation the VA cited as justification for its action was not premised on the best reading of the law, courts said, but it represented a “ ‘permissible’ ” one. 598 U. S., at ––––, 143 S.Ct. at 17. In that way, the Executive Branch was able to evade Congress’s promises to someone who took the field repeatedly in the Nation’s defense.
In another case, De Niz Robles v. Lynch, 803 F.3d 1165 (CA10 2015), the Board of Immigration Appeals invoked Chevron to overrule a judicial precedent on which many immigrants had relied, see In re Briones, 24 I. & N. Dec. 355, 370 (BIA 2007) (purporting to overrule Padilla–Caldera v. Gonzales, 426 F.3d 1294 (CA10 2005)). The agency then sought to apply its new interpretation retroactively to punish those immigrants—including Alfonzo De Niz Robles, who had relied on that judicial precedent as authority to remain in this country with his U. S. wife and four children. See 803 F.3d at 1168–1169. Our court ruled that this retrospective application of the BIA’s new interpretation of the law violated Mr. De Niz Robles’s due process rights. Id., at 1172. But the lower court could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different “reasonable” one and in that way deny relief to countless future immigrants.
Justice Gorsuch summed up Chevron:
That is Chevron’s story: A revolution masquerading as the status quo. And the defense of it follows the same course Justice Douglas described. Though our dissenting colleagues have not hesitated to question other precedents in the past, they today manifest what Justice Douglas called an “acute conservatism” for Chevron’s “startling” development, insisting that if this “coveted anchorage” is abandoned the heavens will fall. But the Nation managed to live with busy executive agencies of all sorts long before the Chevron revolution began to take shape in the mid-1980s. And all today’s decision means is that, going forward, federal courts will do exactly as this Court has since 2016, exactly as it did before the mid-1980s, and exactly as it had done since the founding: resolve cases and controversies without any systemic bias in the government’s favor.
Donner Law Firm 