By Axel Melkonian, LLB III
Artwork by Arasa Hardie, LLB II
Ex-president Donald Trump’s recent nomination of US Court of Appeals judge Amy Coney Barrett to the Supreme Court following the death of Justice Ginsburg sparked global concern of a reversal of progressive decisions in many landmark US cases. In particular, the media has homed in on cases which deal with current social-political issues—such as Roe v Wade, 410 U.S. 113 (1973)—as decisions that might be reconsidered. Yet, while these cases are undoubtedly important, there are many significant decisions which, though targeted by conservatives since they were decided, remain overlooked by the international community. Most notably is Chevron U. S. A Inc. v Natural Resources Defence Council, 467 U.S. 837 (1984), a case long criticised by the American right, and which will be the focus of this article. Chevron is significant in that it led to “Chevron Deference”, a doctrine where provided specific circumstances are met, the judiciary will respect a federal agency’s interpretation of statutes that they administer. This doctrine has enabled many federal agencies such as the Environmental Protection Agency to dictate the scope of their regulations, and in doing so to curb the economic interests of many private enterprises and businesses.
This article will not discuss the advantages or disadvantages of Chevron’s reversal. Instead, it will provide an overview on how Chevron Deference works, before briefly detailing situations in which it has been used to greatly expand the powers of federal agencies. In doing so, this article will demonstrate how reversing this doctrine has become the focus of supporters of a neo-liberal free market.
How does the Chevron Deference function?
In order to understand how Chevron Deference is applied by courts, it is useful to first consider the rationale behind the doctrine’s formation. In Chevron, the Court cited three reasons for deferring authority to federal agencies where statutory interpretation is required. First, the Court assumed that where Congress had left ambiguity, this was an express delegation of authority to the agency to elucidate that provision. Second, the Court supported the notion that federal agencies held greater institutional competence over courts to resolve questions concerning their policies. Finally, the Court also expressed concerns regarding the constitutional separation of powers; the apolitical judiciary should not be involved in reconciling competing political interests.
Based on the above reasoning, the Court then formed a two-step process to deal with questions concerning whether an agency’s interpretation of a statute should be respected. First, the court will ascertain if Congress has already addressed the question at issue. That is, whether the statute is ambiguous as demonstrated by traditional tools of statutory construction. This generally involves courts determining the natural and ordinary meaning of disputed words, resorting to resources such as dictionaries and considering the specific provision as a whole. Only where there is still ambiguity following this process will courts then proceed to step two of the Chevron framework. This requires consideration of whether the agency’s construction of the provision is a reasonable interpretation that furthers the goals of the statute. Precisely what constitutes a “reasonable interpretation” is difficult to define, with courts employing methods such as examining the agency’s reasoning, or even considering whether the construction serves the public interest.
While fairly straightforward, this framework possesses multiple limitations that have gradually been introduced by the courts. For example, not only does the doctrine only apply to an agency’s interpretations of statutes they themselves administer, but Congress must have delegated authority to the agency that the agency’s interpretation carries legal force. This largely hinges on the administrative procedures used by the agency when interpreting that statute. For example, in Christensen v Harris County, 529 U.S. 576 (2000), the court dismissed the agency’s interpretation as having been issued in informal agency opinion letters—the interpretation had to be reached through formal procedures such as proper adjudications and notice-and-comment rulemaking to be binding. Courts have also been reluctant to apply Chevron where it concerns a question of major economic and political significance, reasoning in such circumstances Congress would have delegated a clear textual commitment of authority to the agency. In FDA v Brown & Williamson Tobacco Corp, 529 U.S. 120 (2000), the court did not grant deference to the Food and Drug Administration (FDA) regarding their interpretation of tobacco regulating provisions. Rather, the court pointed to the depth of “tobacco-specific legislation” enacted by Congress, which overall suggested the FDA lacked authority to regulate tobacco. Another notable exception are statutes which courts in previous decisions have concluded bore no ambiguity, and hence left no room for agency discretion.
Notable usage of Chevron
As the most cited case in US administrative law, Chevron Deference has contributed significantly to the current regulative powers agencies have over private corporations and enterprises. One notable case is City of Arlington v FCC, 569 U.S. 290 (2013), where the Supreme Court found an agency was entitled to use the doctrine to interpret statutes concerning the scope of their jurisdiction. The issue in contention was whether the Federal Communications Commission (FCC) was entitled to interpret a provision in the Telecommunications Act concerning what constituted a “reasonable period of time” for state and local governments to act on an application for siting a wireless telecommunications facility. The FCC made a ruling specifying the number of days it considered reasonable, which was then challenged by the City of Arlington on the ground that, since it concerned the scope of the FCC’s jurisdiction, the agency did not have delegated authority by Congress for its interpretation to be binding. The Court ultimately failed to find an agency’s jurisdictional authority could be distinguished from its non-jurisdictional power. They reasoned that every new usage of an agency’s statutory authority could be reframed as an extension of the agency’s scope of jurisdiction. Ultimately, the key question in determining if an agency’s interpretation is to be respected hinges on whether the agency stayed within the bounds of its statutory authority.
Another significant application was in FCC v Fox Television Stations, Inc., 556 U.S. 502 (2009), where the Supreme Court applied the doctrine in granting deference to the FCC’s interpretation of what constituted “indecent language” per 18 U. S. C. §1464. This interpretation was made in the 2004 Golden Globes Order, wherein the FCC declared for the first time that an expletive could be actionably indecent, regardless if used only once. As FCC saw this act as merely clarifying its stance, it then proceeded to prosecute Fox Television for previous isolated utterances of indecent language that dated to the 2002 and 2003 Billboard Music Awards. While Fox argued the FCC had acted arbitrarily and capriciously in suddenly changing course in how it interpreted the statute, this was dismissed by the Supreme Court. Instead, the majority found that provided the FCC’s—and any other agency’s—new interpretation was reasonable, it was entitled to shift its construction of statutory ambiguities accordingly to reflect altered circumstances or a change in policy preferences. This is significant, as it has enabled agencies to effectively expand the scope of their regulations without being limited by their previous statutory interpretations.
Conclusion
With a current 6-3 conservative leaning majority on the Supreme Court, the future of the Chevron Deference is uncertain. Indeed, Justices Thomas, Gorsuch and Kavanaugh have all expressed distaste for the doctrine on grounds that it amounts to an abdication of judicial duty to interpret the law, as well as being unfair due to regulated parties not receiving adequate notice of what the law requires under the Chevron framework. There are also concerns the doctrine is unconstitutional, violating Article I by permitting the executive branch to exercise legislative power. While Chief Justice Roberts has expressed reluctance to hear appeals surrounding this doctrine, the sheer push by conservative factions to have Chevron redecided makes it unclear if it will remain firmly established in US administrative law.