Document Type

Amicus Brief

Publication Date

9-22-2023

Case Name

Loper Bright Enterprises v. Raimondo

Abstract

Amici write to address the first question presented: whether Chevron should be overruled. Properly understood, it should not. Chevron has been much discussed but not always understood. On the one hand, courts have sometimes misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of such aggressive applications. This case provides an opportunity for the Court to clarify what Chevron does and does not entail, while reaffirming the essential role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs. Many of the criticisms leveled at Chevron are based on the premise that it empowers agencies to usurp the authority of the courts to interpret statutes. So framed-and some courts have indeed seemed to understand it this way-Chevron looks like a supercanon of construction, one that requires courts to reflexively defer to what an agency claims a statute means whenever there is some statutory ambiguity. But the premise is wrong. Chevron is not a doctrine for resolving statutory ambiguities as such, but rather for identifying and policing the boundaries of Congressional delegations. It provides a rubric to recognize when (and to what extent) Congress has granted an agency authority to decide a matter left unresolved by the statute, usually because the way in *4 which the statute applies to concrete situations requires elaboration through agency experience or some aspect of the statute requires “the formulation of subsidiary administrative policy within the prescribed statutory framework.” Yakus v. United States, 321 U.S. 414, 425 (1944). Chevron thus requires far more than mere ambiguity-it requires statutory indeterminacy, a gap “left ... unresolved” even after a court has applied all its “traditional tools of statutory construction.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018). In other words, Chevron addresses, not instances where statutory text might be judicially construed to have this meaning or that, but where, using these “traditional tools,” the court cannot confidently arrive at a judicial construction at all, either because competing interpretations are equally plausible or because identifying a governing interpretation requires policy assessments that courts ought not to make. When Congress leaves such a gap-while constitutionally delegating to the agency the primary responsibility to implement the statute-Congress signals its intent to “entrust[] to the [agency], rather than to the courts, the primary responsibility for interpreting the statutory term” within the limits of the authorizing statute. See Batterton v. Francis, 432 U.S. 416, 425 (1977). By Congress's command, the agency should exercise its discretion to fill that gap, and the courts independently determine and police the boundaries of the agency's delegated authority and ensure it has exercised it reasonably. See Peter L. Strauss, *5 “Deference” Is Too Confusing - Let's Call Them “Chevron Space” and “Skidmore Weight”, 112 Colum. L. Rev. 1143, 1145 (2012). So understood, Chevron need not and should not be overruled. Since early in the history of the Republic, Congress has seen fit to entrust executive agencies to “fill up the details” of the more “general provisions” that it enacts. See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 20 (1825). Chevron, properly understood, merely assists in identifying the boundaries of statutory delegations; it does not pose the problems Petitioner identifies with the more extravagant conceptions of the doctrine (however justified those concerns may be). Nor does it violate the Administrative Procedure Act-on contrary, Chevron mirrors that statute by requiring courts to independently determine the scope of agency authority and then review actions within that scope for reasonableness. Finally, Chevron promotes, rather than threatens, the separation of powers by giving effect to duly enacted laws. Requiring that Congress do its job is one thing. It is quite another to refuse Congress's choice to delegate certain issues-issues it could not reasonably attend to itself-to the Executive. Chevron respects those choices and should be reaffirmed.

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