Could Congress Reinstate Chevron?

Dissenting from today's ruling in Loper Bright Enterprises v. Raimondo, Justice Kagan argued that the majority failed to make a case that any of the criteria for overruling a precedent were satisfied. Moreover, she wrote, stare decisis ought to have special force because the overruled decision--Chevron USA v. NRDC--was a matter of statutory interpretation. As Justice Kagan put it: "Chevron is entitled to the supercharged version of stare decisis because Congress could always overrule the decision."

Nothing in the majority opinion by Chief Justice Roberts contradicts that point. Nor did he contest a further point made by Justice Kagan--that Congress, in only very rarely mandating that courts review particular agency determinations without the deference Chevron required, apparently had acquiesced in Chevron deference. Why, then, did the majority think it appropriate to overrule Chevron nonetheless?

Perhaps it was an oversight. Majority opinions, including Loper Bright itself, respond to some but not all of the points made in the dissent. Inadvertent neglect seems like a fair hypothesis given an apparent error in the majority opinion. Near the end of the majority's stare decisis discussion, we find this: "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,” [citation omitted] is for us to leave Chevron behind."

That's an error because judicial overruling is not the only way to cure the supposed mistake of Chevron. Congress could also change what everybody acknowledges is a presumption that gaps and ambiguities should be construed as delegations to agencies.

Or perhaps the majority thought Chevron was so wrong--one might even say "egregiously wrong"--and so mischievous in its consequences, that it satisfied the criteria for overruling even under the "supercharged version of stare decisis" applicable to statutory precedents. If that was so, however, the majority should have said as much expressly.

In any event, as I said, the majority did not apparently disagree that Congress could have overruled Chevron. But what about the converse? Could Congress reinstate Chevron?

For concreteness, imagine that a future Congress were to enact a Deference to Administrative Agencies Restoration Act (DAARA) that restored some version of Chevron. If the fatal flaw in Chevron was that it failed to respect the requirement of Section 706 of the Administrative Procedure Act (APA) requiring that a court reviewing agency action "shall decide all relevant questions of law," then Congress could indeed restore Chevron by amending the APA to say that "in deciding questions of law, reviewing courts shall defer to reasonable agency actions where a statute contains a gap or ambiguity."

Much of the majority opinion suggests that the core problem with Chevron was indeed its departure from (the majority's reading of) Section 706. Moreover, near the end of Part II, the majority opinion allows that Congress can expressly delegate discretion to an agency or authorize one to "fill up details" of a statutory scheme that contains gaps. If Congress can expressly delegate discretion and gap-filling authority in an individual statute, then could it not--via something like DAARA--expressly delegate wholesale?

The majority opinion does not provide a definitive answer to that question, but it does repeatedly cite Marbury v. Madison and other sources that suggest that giving deference to agency interpretations of unclear or ambiguous statutory terms is inconsistent with Article III's assignment to courts of the power to say what the law is. Yet if courts would be satisfying their Article III duty by deferring to agency discretion when it is expressly conferred on a statute-by-statute basis, it's hard to see why they would be abdicating that duty by deferring to a wholesale delegation of discretion such as DAARA.

After Loper Bright, it would presumably be open to someone challenging the constitutionality of (what is, recall, only a hypothetical) DAARA to say that a wholesale delegation violates the nondelegation doctrine. But that seems pretty plainly wrong, because DAARA would not violate the nondelegation doctrine unless and only to the extent that any particular statutory terms left ambiguous and thus subject to DAARA deference are so indeterminate as to provide no intelligible principle. The degree of ambiguity or size of a gap that was needed to trigger Chevron (until today) was substantially less than the degree needed to violate the nondelegation doctrine.

Yet Justice Thomas writes a concurrence in which he says flatly that Chevron is unconstitutional. He says that Chevron deference "permits the Executive Branch to exercise powers not given to it." Potentially, that flaw goes away if Congress expressly authorizes deference as in DAARA, for then the relevant powers are given to the agencies. Even so, however, Justice Thomas also says that when agencies construe their statutes, they are exercising the judicial power in violation of Article III--which would remain a constitutional violation even if authorized by Congress. And in any event, Justice Thomas thinks Chevron was also unconstitutional because it limited the scope of Article III judicial power, which is also impermissible even if authorized by Congress.

No other Justice joined Justice Thomas's concurrence, although Justice Gorsuch, who wrote a (very long) concurrence mostly about the relation of Article III to stare decisis, suggested that he too thinks Chevron was unconstitutional for reasons that would also render DAARA unconstitutional. Even so, that's only two Justices. We do not know whether three of the other four Justices comprising the Loper Bright majority would go along with a ruling that Congress lacks the ability to restore Chevron.

And we are unlikely to find out in the next few years. Even though Chevron was a decision upholding the Reagan administration's deregulation of polluters and was once enthusiastically applied by conservative judges and jurists, it eventually became a bĂȘte noire for the right. Any Congressional effort to restore Chevron must therefore await a time when Democrats control both Houses of Congress (with either 60 votes in the Senate or the will to change the cloture rule) and the Presidency. After last night, that's probably at least four and a half years away.