As we discussed previously, the United States Supreme Court recently overruled Chevron U.S.A., Inc. v. Nat. Res. Defense Council, Inc. 467 U.S. 837 (1984) in Loper Bright's Enter. v. Raimondo, 144 S.Ct. 2244 (2024). Chevron, as we recall, established a rule that courts were to defer to agency interpretations of statutes if those statutes were genuinely ambiguous. In previous writing, we summarized the Court’s reasoning in Loper Bright.
Now, we want to engage in a bit of educated speculation about what may come next. In the months and years to come, courts will continue to review agency action as they have for decades. In the wake of Loper Bright, however, agencies will no longer be able to count on courts deferring to them when it comes to interpreting ambiguous statutes. In short, the litigating positions of federal agencies like the FAA will be significantly weaker than they were before Loper Bright overruled Chevron. We want to engage in a little bit of speculation as to what the new landscape may look like.
To begin with an obvious point, overruling Chevron is not going to make interpreting statutes any easier. Loper Bright, at least in theory, will require Congress to draft more legislation and to do it more clearly as agencies won’t be as able to fill in the gaps. But it seems like wishful thinking to believe that Congress is going read Loper Bright and suddenly get more serious about its job of writing more legislation or crafting it more carefully. If agencies cannot address a problem through rulemaking, it’s possible that nobody will address those problems anymore.
Vagaries and ambiguities in legislation are inevitable. For one, new problems arise that may require old statutes to be interpreted in light of changing circumstances. It is difficult for Congress to draft clear statutes with an eye towards situations it cannot even imagine. While an agency may try to expand the reach of an old statute through clever readings, courts are likely to be more skeptical of such attempts in a post-Chevron world.
Furthermore, governing is hard and disagreement is inherent in the work. Sometimes, Congress may pass vague statutes because they can’t agree on the details. Unless Congress clearly delegates the details to an agency, courts will be less likely to allow Congress to pass the hard work of governing on to agencies. Executive branch agencies will simply be less equipped to deal with problems that arise, some of which may require quick action.
The principal consequence of Loper Bright is courts significantly discounting the views of agencies. But to be fair, the Supreme Court did not say that an agency’s views will always be irrelevant. Rather, the Court harkened back to an earlier type of deference established in Skidmore v. Swift & Co., 323 U.S. 134 (1944). In the years after Loper Bright, Skidmore deference will have its moment.
Skidmore deference is a lesser type of deference than Chevron was. Chevron seemingly required a reflexive deference to the agency’s plausible reading of a statute once a court determined that a statute was ambiguous. Skidmore is less reflexive. Under Skidmore, courts may consider the interpretations and opinions of a relevant agency that are made in pursuance of an official duty and based upon specialized experience. The weight given to the agency’s interpretation depends on several factors including the agency’s apparent thoroughness in its consideration, the validity of its reasoning, whether the agency issued its interpretation contemporaneously with the statute, whether the agency’s interpretation has ever changed, and other factors that give it the power to persuade. Thus, rather than a reflexive deference to an agency, we will see a multi-factorial consideration of the agency’s position before a court adopts it.
True, the Supreme Court’s discussion in Loper Bright implying that there is a “best” reading of a statute that can be ascertained through the traditional tools of interpretations may not leave much room for Skidmore deference. But there inevitably will be future cases where the traditional tools of statutory interpretation do not lead to one best reading. In those cases, Skidmore will have a role to play. But unlike under the Chevron regime, courts will ultimately be free to reject an agency’s interpretation and will not have to reflexively adopt it as they did under Chevron.
Importantly, Skidmore deference will not allow the flip-flopping of agency positions that Chevron and its progeny allowed. Under Chevron, successive presidential administrations were permitted to change how agencies interpreted statutes, leading to differing interpretations of the same statutes by administrations of different parties. See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 67 (2005) (holding that agency inconsistency was not a reason to decline to apply Chevron). Under Skidmore, courts will consider whether an agency has changed its position over time. And an agency’s shifting position is a factor that will lessen the persuasiveness of its arguments.
Another crucial point to remember after Loper Bright is that Congress could and still can explicitly delegate responsibility to agencies. Loper Bright overruled Chevron on a statutory basis, not a constitutional one. The Supreme Court concluded that Chevron deference was inconsistent with how the Administrative Procedure Act dictated that questions of law were to be decided. Congress can, however, through a statute, give agencies the power to interpret the statutes that it empowers them to execute. Whether Congress revisits its prior enactments to expressly bestow this discretion, or is more explicit in bestowing this power in the future, is something we will see in the years to come.
Finally and relatedly, it will be interesting to see what happens to Auer deference in the years to come. See Auer v. Robbins, 519 U.S 452 (1997). Auer deference, sometimes called Seminole Rock deference, is like Chevron deference but applies to ambiguities in agencies’ regulations, not Congressional statutes. In other words, when an agency drafts a regulation that turns out to be ambiguous, Auer holds that courts are to defer to the agency’s interpretation.
The Court narrowly upheld Auer deference in Kisor v. Wilkie, 588 U.S. 558 (2019). But since Kisor, Justice Ruth Bader Ginsburg passed away and Justice Amy Coney Barrett, who voted to overrule Chevron, replaced her. As a simple matter of counting votes, the five-justice majority that upheld Auer in Kisor no longer exists. Furthermore, many of the separate concurring opinions in Kisor employed arguments like the ones used to overrule Chevron.
There are, however, arguments for why Auer should survive even though Chevron fell. As we mentioned previously, the Loper Bright Court recognized that Congress may delegate to agencies. This delegation can include interpretive powers and the Auer doctrine seemingly flows from this delegation. If Congress delegates the power to write rules, that arguably includes the power to resolve ambiguities in those rules.
The dust from October Term 2023’s administrative law shake-up has not yet settled. It may not settle for years to come. But in the meantime, AOPA’s LSP will continue to monitor these developments. If you have cases that touch on these issues, or merely wish to have a discussion about them, please give AOPA’s LSP a call.
