Loper Bright Enterprises v. Raimondo
Join host Kannon Shanmugam, along with his colleague, Abigail Frisch Vice, as they delve into the Court’s landmark ruling in Loper Bright Enterprises v. Raimondo. Kannon and Abby discuss the decision's impact on statutory interpretation and agency actions.
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- Transcript
Kannon Shanmugam: Welcome to “Court Briefs,” a podcast from Paul, Weiss. I'm your host, Kannon Shanmugam, the chair of the firm's Supreme Court and Appellate Litigation Practice and co-chair of our Litigation Department. In this podcast, we analyze Supreme Court decisions of interest to the business community.
And perhaps no recent decision has been of more interest than the Court's decision in Loper Bright Enterprises v. Raimondo, in which the Court overruled the so-called Chevron doctrine. I'm delighted to be joined today by my colleague, Abby Vice, to talk about the Court's decision. So, Abby, why don't we start with a bit of a primer on the Chevron doctrine?
Abigail Frisch Vice: Absolutely. Since the 1980s, courts have evaluated agencies' interpretations of statutes deferentially under a doctrine called Chevron, as you mentioned, which is named after the Supreme Court case in which the doctrine began to emerge.
And under that doctrine, a court reviewing an agency's interpretation of a statute decides first whether the statutory language is clear. If not, the court decides second whether the agency's interpretation is reasonable. And if so, the court must defer to that interpretation, even if the court would have interpreted the statute another way if it had done so in the first instance.
Kannon Shanmugam: As with many Supreme Court cases, this case is actually two separate cases, both involving the fishing industry. Abby, tell us a little bit about the facts of these cases.
Abigail Frisch Vice: Sure. So, the petitioners are two fishing businesses, Loper Bright Enterprises and Relentless Incorporated. The Court resolved them together because both cases presented the same legal question, which is whether to overrule Chevron. And the federal statute at issue here is the Magnuson-Stevens Act, which authorizes the National Marine Fisheries Service, an agency, to require that vessels carry observers to enforce the service's regulations. The Act also provides that U.S. vessels can be required to pay those observers in two specific circumstances, and that's harvest in the Pacific Northwest or harvest with quantity limits. And those payments are capped at 2 and 3 percent of the harvest value, respectively.
The agency action that gave rise to this case came about in 2020 when the service promulgated a rule requiring Atlantic herring fisheries, including petitioners here, to pay for observers and not limited by a cap. So, the petitioners sued, arguing that the agency had no power under the statute to require them to pay for observers.
Kannon Shanmugam: And what did the lower courts do in these cases?
Abigail Frisch Vice: The lower courts applied Chevron and upheld the agency's interpretation for a whole host of reasons.
Kannon Shanmugam: And so that brings us to the Supreme Court. And as I said at the beginning, the Supreme Court in this decision overruled the so-called Chevron doctrine. What did the Court say in its majority opinion?
Abigail Frisch Vice: In an opinion by Chief Justice Roberts, the Court overruled the Chevron doctrine on the ground that it violates the Administrative Procedure Act. The Chief Justice set the stage with the background principle that it is, and always has been, the job of the courts to interpret the law. And he explained that historically, courts have properly considered agencies' views on the meaning of the law without deferring to them. And that doctrine is now known by the name Skidmore.
The Court then proceeded to explain how, in the New Deal era, the administrative state grew exponentially, and Congress responded by passing the Administrative Procedure Act to provide judicial review of agency actions. That statute says that courts shall decide all relevant questions of law and interpret constitutional and statutory provisions. And the Court explained that Chevron could not be squared with that language or with the foundational principle that courts are the experts when it comes to statutory interpretation. The Court explained that agencies' subject matter expertise does not require deference because agencies can and should offer that expertise to inform the court's decision. And under Skidmore deference, the Court will give that expertise the weight it deserves.
Lastly, the Court addressed the role of stare decisis, a principle that provides guardrails against overruling precedents. The Court explained that stare decisis didn't save the Chevron doctrine here because it was wrong from the start, as it had never grappled with the APA's statutory language. And further, Chevron had proved unworkable because it revolves around ambiguity, a concept that is inherently unclear and does not lend itself to stability or reliance. That said, the Court clarified that by overruling Chevron, it was not calling into doubt any of the individual cases that had previously been decided on Chevron grounds.
Kannon Shanmugam: As with many cases involving the separation of powers, in this case, we had the Chief Justice on one side and Justice Kagan on the other. Abby, tell us a little bit about Justice Kagan's reasoning.
Abigail Frisch Vice: That's right, Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. She explained her view that Chevron was right because Congress implicitly instructs agencies to fill statutory gaps, and those are inevitable as a practical matter. She also reasoned that the APA is ultimately unclear about judicial deference to agencies, which she has seen as a practice with solid historical pedigree.
And last, she urged that overruling Chevron was inappropriate in light of stare decisis principles, because it has been a fundamental component of administrative law for 40 years. And if Congress thought Chevron was a problem, it has had every opportunity to fix it and hasn't.
Kannon Shanmugam: And that brings us to the implications of the Court's decision. Obviously, the Chevron doctrine is no longer good law. What does this mean for statutory interpretation and review of agency actions going forward?
Abigail Frisch Vice: Well, big picture to many people, Chevron had changed the political landscape for the worst. Many thought that the doctrine incentivized agencies to interpret statutes aggressively in their own self-interest. And agencies simply don't have that same incentive anymore because under Skidmore deference, their interpretations will only matter to the extent that they persuade the court. And for that to happen, agencies will need to make a reasonable case using the traditional tools of statutory interpretation. But to be fair, that implication matters only to the extent that we think Chevron has mattered lately. And as the Court itself pointed out, the Court hasn't cited Chevron in nearly 10 years, and lower courts apply it quite irregularly. Further, in recent history, the government has invoked it only sparingly, perhaps seeing the writing on the wall. So, it's possible that the decision makes more of a doctrinal difference than a practical one.
And as a closing thought, I'll note that overruling Chevron might put pressure on other principles of administrative law, and in particular one that the court referenced in its decision, that is, Congress's ability to expressly delegate authority to an agency. The APA says that there is no judicial review for agency action that is committed to agency discretion by law, and the court's decision notes a handful of statutes in that zone. For example, one statute expressly saying that the agency will define the term safety hazard through regulations, and another statute saying that the agency must regulate power plants if the administrator deems it appropriate and necessary. Without Chevron, agencies might now more often seek to defend their statutory interpretations by avoiding judicial review altogether, arguing that Congress has expressly delegated interpretive authority to the agency.
Kannon Shanmugam: Well, one thing is certain, Loper Bright is going to be one of the most cited Supreme Court decisions of recent times. And thank you, Abby, for your analysis of the decision. If you have any questions about the decision, please feel free to reach out either to Abby or to me. For more information about Paul, Weiss's Supreme Court and Appellate Litigation Practice, please visit us at our website, paulweiss.com. Please subscribe to “Court Briefs” wherever you listen to your podcasts. And if you enjoy this podcast, please rate and review us on your favorite platform. We'll be back again soon. And until next time, thank you for joining us and take care.
