June 25, 1984 – Supreme Court Decides Chevron v. Natural Resources Defense Council Establishing Principle of “Chevron Deference” for Administrative Actions

“The Chevron Deference” is a term derived from the landmark case decided on this day in history, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In that case, the Supreme Court, in a majority opinion written by Justice John Paul Stevens, found that:

With regard to judicial review of an agency’s construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Kevin W. Saunders, writing for the Arizona Law Review in 1988, noted that “When the administration of a statute is entrusted to an administrative agency, the agency is naturally faced with questions as to what the statutory terms mean.” (“Agency Interpretations and Judicial Review: A Search for Limitations on the Controlling Effect Given Agency Statutory Constructions,” online here.)

In Chevron, Saunders pointed out, the Court did not grant the agency view mere deference, but instead granted controlling weight, even without finding an explicit delegation to the agency of the authority to construe the statute. If the delegation was implicit rather than explicit, Justice Stevens wrote, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. (footnote omitted)”

Justice John Paul Stevens

In 1990, Cass R. Sunstein argued in the Columbia Law Review in “Law and Administration after Chevron” (online here) that the Chevron principle is “quite jarring to those who recall the suggestion, found in Marbury v. Madison and repeated time and again in American public law, that it is for judges, and no one else, to ‘say what the law is.’” But, he adds, “it is also strikingly reminiscent of the New Deal enthusiasm for agency autonomy and the New Deal belief in a sharp disjunction between the realm of law and the realm of administration.”

What Chevron did, Sunstein asserted, was to alter the distribution of national powers among courts, Congress, and administrative agencies.

As a discussion of the Chevron Deference on the Cornell law website points out, however, in subsequent Supreme Court cases, the scope of the deference has been narrowed:

. . . only the agency interpretations reached through formal proceedings with the force of law, such as adjudications, or notice-and-comment rulemaking, qualify for Chevron deference, while those contained in opinion letters, policy statements, agency manuals, or other formats that do not carry the force of law are not warranted a Chevron deference.  In such cases, the Court may give a slightly less deferential treatment to the agency’s interpretation, giving a persuasive value under the Court’s ‘Skidmore deference’ analysis.” 

The “Skidmore Deference,” as the website Ballotpedia explains, was developed in the opinion for the 2000 U.S. Supreme Court case Christensen v. Harris County (529 U.S. 576) and named for the 1944 U.S. Supreme Court decision in Skidmore v. Swift & Co. (323 U.S. 134).

Unlike Chevron deference, which requires a federal court to defer to an agency’s interpretation of an ambiguous statute if the interpretation is considered reasonable, Skidmore deference allows a federal court to determine the appropriate level of deference for each case based on the agency’s ability to support its position.

Controversy over the Chevron Deference can be seen in recent cases before the court involving Medicare. (They include Becerra v. Empire Health Foundation and American Hospital Association (AHA) v. Becerra.) As reported in Penn’s “Regulatory Review,” during oral arguments over one of the cases held in January, 2022, “the complexity of the Medicare system led U.S. Supreme Court Justice Stephen Breyer, who used to teach courses on regulation at Harvard Law School, to acknowledge that ‘the chances I understand it correctly are near zero.’” Justice Neil Gorsuch, on the other hand, said that Chevron allows agencies to supplant courts, which are supposed to interpret the laws. Critics also argue that Chevron encourages Congress to grant agencies broad discretionary authority that should remain with lawmakers.

Update: James Romoser, Editor of ScotusBlog, reported of the newly decided American Hospital Association v. Becerra:

In a narrow and unanimous opinion [written by Justice Brett Kavanaugh] on [June 15, 2022], the court did not overturn the Chevron doctrine. Instead, it just ignored it. And in doing so, the court may have portended the future of Chevron, which already has been narrowed considerably over the years. Rather than a single, decisive blow or a continued death by a thousand cuts, the court might simply snuff out Chevron with the silent treatment.”

ScotusBlog continues:

Notably, the opinion does not contain even a single citation to Chevron v. Natural Resources Defense Council, even though hundreds of pages of briefing and a large chunk of the oral argument focused on the continued vitality of the landmark 1984 case and the doctrine it created.”

For further analysis and information, see these two reports from the Congressional Research Service: “Chevron Deference: A Primer (May 18, 2023)” and “Chevron Deference in the Court of Appeals (June 8, 2023).”