Chevron Deference and the Administrative State

Why do US Courts always seem to give the three letter agencies the benefit of the doubt?

Those seeking to hold the FDA, CDC, NIH/NIAID, DoD and DHS accountable for injury caused by their gross mismanagement of the COVIDcrisis often attempt to turn to the Federal courts for legal redress. Unfortunately, in addition to the layered specific legal indemnification provided by the congressionally approved PREP act, CARES act and Countermeasures Injury Compensation Program (CICP), since 1984 there has been a general legal position that the (unelected) third branch of government, the courts, will defer to the “expertise” of a fourth, unelected branch (the administrative state) and its permanent federal employees (embedded within the “elected” executive branch) when confronting a scientifically or technically controversial subject.

The administrative state as well as its Senior Executive Service and GS-rank staff arrogantly and unconstitutionally consider themselves to be the permanent employees of the US Federal Government, and consider the elected officials tasked with funding, oversight and management of these agencies (Congresspersons and the POTUS) merely temporary employees.

The Chevron Deference doctrine legal policy established by the Supreme Court in 1984 <what irony!> has become a keystone of US administrative law, and forms the legal basis which enables this extra-constitutional fourth branch of government. This decision has played a central role in enabling the explosion of administrative state power and authority seen since that legal decision. Subsequent to the majority opinion justifying the decision which underpins the “Chevron Deference” doctrine, the assertion by the Supreme Court that the administrative state represents an “elected” branch of government has become transparently absurd.

Focusing back on the COVIDcrisis, what this means (in a practical sense) is that when there is a difference of opinion regarding science or technology issues between the “official” policy of a federal agency (the defendants) and someone or some group seeking to sue for legal redress consequent to damages caused by arbitrary and capricious actions of that agency or its personnel (the plaintiff(s)), then the courts will generally side with the federal agency. The underlying assumption being that federal agencies are always correct in their interpretation of scientific and technical issues and how they apply that interpretation to the statutory authority granted to them by Congress.

Diving deeper into the details, the specific legal basis for this position is the consequence of the 1984 Supreme Court decision involving the case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The resolution and judicial activist majority opinion in this case established the parameters of the new legal doctrine requiring that the courts defer to the administrative state in matters involving interpretation of congressional statutes which it administers.

My layperson understanding of all of this (acknowledging that I am not a lawyer) is that the Supreme Court, acting under a false assumption that the administrative state can be held accountable for its actions by the citizens of the United States via the POTUS electoral process, has determined that the courts must defer to the expertise and judgement of administrative state employees largely because federal judges are appointed rather than elected, and the top leadership of (executive branch) administrative agencies are appointed by the (elected) POTUS.

Unfortunately, as President Trump discovered and President Biden has abundantly demonstrated, the tail wags the dog. The permanent employees of the executive branch federal agencies cannot be held accountable by the POTUS, because for all practical purposes they are not “at will” employees. They cannot be fired for performance and accountability issues without an extensive, multi-year legal battle. In today’s post 1984, post-modern United States Presidency, the administrative state bureaucracies control the POTUS, not the other way around. And authorized scientific/technical truth has become whatever these agencies find most convenient to support their agendas.

In other words, a prior activist Supreme Court meddled in the Constitutional balance of powers in favor of a federal agency, and this decision has been generalized across the entire administrative state. The blowback has been further development and an enormous increase in power in a fourth, non-constitutional branch of government which is commonly referred to as the permanent administrative state. Buried within that administrative state is an unelected permanent shadow government commonly referred to as the “Deep State”. Furthermore, original Congressional authorization determined that the CIA and Director of National Intelligence owe primary allegiance and responsibility to defend and serve to the POTUS rather than to the US Constitution. This is similar to what happened in 27 BC when the Roman emperor Augustus enabled creation of a powerful permanent “Praetorian Guard”. Akin to how the Roman guard eventually functioned, the CIA and associated “intelligence community” increasingly acts to select the POTUS which it wishes to place as the figurehead or frontperson for the shadowy permanent “Deep State” leadership which actually controls domestic and foreign US policy.

For further details on how all of this works to strengthen the administrative state and its employees at the expense of the authority of both Congress and POTUS, please see the prior substack essay titled “The Invisible Power Controlling the US Government. How Trump's "Schedule F" could have drained the swamp.” Additional background can be found in the substack essay “What to do with a Problem like HHS? (Pt. 2, treating the disease). Unwinding entrenched administrative state agencies is hard, time consuming work”

What is the Chevron Deference doctrine, how did the 1984 SCOTUS come to this decision, and what are the consequences?

Regarding details of the “Chevron Deference” doctrine, Wikipedia provides a balanced and fairly comprehensive summary of the issues, beginning with this introductory overview.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. The decision articulated a doctrine now known as "Chevron deference". The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: first, whether Congress has spoken directly to the precise issue at question, and second, "whether the agency's answer is based on a permissible construction of the statute."

The following are the key clauses and logic which underpins the SCOTUS justification for the “Chevron Deference”.

First, the SCOTUS determined that the U.S. judiciary is not a political branch of government, and it emphasized that U.S. federal judges are not elected officials.

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. 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 ....

— Chevron, 467 U.S. at 866.

Then the Court reasoned that when Congress passes a law that contains an ambiguity, this represents an implicit congressional delegation of authority to the executive branch agency that implements the law. The Court then concluded that these delegations of power should limit a federal court's review of the agency's interpretation of the law.

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. 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.

— Chevron, 467 U.S. at 843–44

Based on this reasoning, the SCOTUS majority opinion established a two-step analysis for federal courts to use when considering a challenge to an agency's interpretation of a law.

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 . . . 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.

— Chevron, 467 U.S. at 842–43.

In other words, when Congress fails to do its job and create clear statutes, according to the Chevron Deference decision the administrative state has the authority to broadly interpret and exploit the ambiguities in Congressional authorization bills as it sees fit.

Consequent to this decision we have seen the explosive rise of power of a fourth, unelected branch of government- the permanent administrative state, its elite unaccountable and unelected administrators (the Senior Executive Service), and its permanent Praetorian Guard (the CIA) which enjoys the benefit of a large “dark” classified budget and its very own independent venture capital fund (In-Q-Tel) which makes it functionally autonomous from oversight by the Citizens of the United States and their elected representatives.

From this, I hope that you can appreciate my point above that the 1984 “Chevron Deference” SCOTUS opinion is the keystone in the arch of current administrative law. And like a keystone, if the “Chevron Deference” were to be successfully challenged and significantly revised by SCOTUS (functionally pulling the keystone out of the arch), the power and integrity of the entire administrative state structure would be compromised and the strength of the unelected fourth branch of government may fall, thereby restoring balance between the remaining three (Constitutional) branches of government.

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Legal Opposition to the Chevron Deference doctrine

Returning to Wikipedia’s comprehensive analysis-

Federal

The United States House of Representatives in the 115th Congress passed a bill on January 11, 2017, called the "Regulatory Accountability Act of 2017", which, if made into law, would change the doctrine of Chevron deference. Supreme Court Justice Neil Gorsuch (son of Anne Gorsuch, who was head of EPA at the time of the events which led to the Chevron decision) has also written opinions against Chevron deference, with news commentators believing that Gorsuch may rule against Chevron deference on the Supreme Court.

In the U.S. Supreme Court case City of Arlington, Tex. v. FCC, the dissent by Chief Justice Roberts joined by Justice Kennedy and Justice Alito objected to excessive Chevron deference to agencies:

My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., we established a test for reviewing "an agency's construction of the statute which it administers." 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If Congress has "directly spoken to the precise question at issue," we said, "that is the end of the matter." Ibid. A contrary agency interpretation must give way.

"It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). The rise of the modern administrative state has not changed that duty. Indeed, the Administrative Procedure Act, governing judicial review of most agency action, instructs reviewing courts to decide "all relevant questions of law." 5 U.S.C. § 706.

Likewise before joining the U.S. Supreme Court, 10th Circuit Judge Gorsuch in his concurrence in Gutierrez-Brizuela v. Lynch also objected to excessive Chevron deference to agencies:

Quite literally then, after this court declared the statutes' meaning and issued a final decision, an executive agency was permitted to (and did) tell us to reverse our decision like some sort of super court of appeals. If that doesn't qualify as an unconstitutional revision of a judicial declaration of the law by a political branch, I confess I begin to wonder whether we've forgotten what might.

In the Administrative Procedure Act (APA) Congress vested the courts with the power to "interpret ... statutory provisions" and overturn agency action inconsistent with those interpretations. 5 U.S.C. § 706.

For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That's a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law's meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.

Subsequently, in Waterkeeper Alliance v. EPA the court did not defer to the agency's interpretation.

States

Arizona

At the state level, Arizona has statutorily overturned Chevron deference with respect to most of its own agencies. In April 2018, the state's governor Doug Ducey signed HB 2238 into law, which states in relevant part,

In a proceeding brought by or against the regulated party, the court shall decide all questions of law, including the interpretation of a constitutional or statutory provision or a rule adopted by an agency, without deference to any previous determination that may have been made on the question by the agency.

The bill explicitly exempts health care appeals and actions of agencies created by the state's Corporation Commission.

Florida

In November 2018, voters in Florida approved an amendment to the Florida State Constitution, which states,

In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo.

The amendment also stopped deference to agencies' interpretation of its own rules, ending Auer deference in the state.

Mississippi

The Mississippi Supreme Court judicially overturned Chevron deference at the state level in King v. Mississippi Military Department (2018).

North Carolina

The North Carolina Supreme Court has rejected Chevron deference, but the state agencies are still entitled to deference comparable to Skidmore deference. Nevertheless, some lower courts have continued to give agencies deference under Chevron.

Ohio

The Ohio Supreme Court judicially overturned Chevron deference at the state level in TWISM Enterprises v. State Board of Registration in 2023.

Wisconsin

The Wisconsin Supreme Court judicially overturned Chevron deference at the state level in Tetra Tech, Inc. v. Wisconsin Department of Revenue (2016). In 2018, Governor Scott Walker signed a bill prohibiting courts from deferring to agency interpretations, and thus codifying the end to deference in Wisconsin.

The Chevron Deference doctrine may fall or become significant revised during this SCOTUS term.

As can be appreciated from the prior section covering the series of both Federal and State legal decisions which are increasingly restricting the Chevron Deference doctrine, and the specific judgements and opinions rendered by SCOTUS members Justice Roberts, Justice Kennedy, Justice Gorsuch and Justice Alito, there is speculation that the Chevron Deference doctrine may soon be significantly revised to further restrict the operational latitude of the permanent unelected Administrative State.

Attorney John P. Elwood, a partner at Arnold & Porter in Washington, D.C., specializing in appellate litigation and administrative law, penned the following assessment of what may be one of the most important administrative law cases to be decided during the current SCOTUS term.

Loper Bright Enterprises v. Raimondo. The Magnuson-Stevens Act governs the management of fisheries in federal waters and provides that the National Marine Fisheries Service may require vessels to carry federal observers onboard to enforce agency regulations to prevent overfishing. The National Marine Fisheries Service construed the governing statute to allow it to require industry to pay the salaries of those monitors. A divided panel of the U.S. Court of Appeals for the D.C. Circuit held that the statute was reasonably read to allow the agency to require industry to pay the cost of federal monitors. In dissent, Judge Justin R. Walker wrote that “Congress unambiguously did not” authorize the agency to make fishermen “pay the wages of federal monitors who inspect them at sea.”

Before the Supreme Court, petitioners, a group of fishing companies, argue first that under a proper application of Chevron U.S.A. v. Natural Resources Defense Council, the Magnuson-Stevens Act does not grant the agency the power to require domestic vessels to pay the salaries of the monitors; they argue that while the agency is authorized to require monitors, it is silent about requiring industry to pay for them. But in addition to that plain-vanilla administrative law question, the petition has a second question that is a potential blockbuster: Whether the court should overrule Chevron or at least clarify whether statutory silence about the matter of payment constitutes an ambiguity requiring deference to the agency. The Chevron doctrine calls on courts to defer to federal agencies’ interpretations of ambiguous laws. Critics argue that this gives unaccountable bureaucrats too much power. Enough people think this case may have legs that a whopping fourteen amicus briefs were filed supporting the petition.

I hate to read too much into subjective impressions, but the government’s brief in opposition seems to me to have a tone that suggests that it is resigned to the fact that the court will grant review, at least on the narrower issue. But next term will become a lot more interesting if the court grants on the broader issue of whether to overrule Chevron.

The Supreme Court granted petition for a writ of certiorari in the case Loper Bright Enterprises v. Raimondo to be heard during the court's 2023–2024 term. As discussed above, the case deals with payment of observers from the National Marine Fisheries Service that travel with fishermen during their outings, which under the Service's rules, must be paid by the fishermen. The fisherman challenged this rule, which in lower courts was upheld based on the Chevron deference, but has been argued by lawyers that oppose the use of Chevron as a means to challenge the validity of the rule. The petition for certiorari to the Court specifically questioned whether Chevron should be overturned.

Full up-to-date details and related press coverage regarding Loper Bright Enterprises v. Raimondo can be found here on the SCOTUS blog.

Stay turned for further developments. The disposition of this case in the US Supreme Court will likely determine the fate of the permanent Administrative State and its Deep State leadership for the foreseeable future.

Will we continue to have an unelected bureaucracy running the country, functionally selecting the POTUS and controlling the executive branch, or will we return to a more representative and responsive Federal Government akin to that envisioned in the US Constitution and Bill of Rights? Time will tell, and all of this is likely to play out against the backdrop of what many think is the most important US election cycle of the 21st century.

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