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04/28/2018

Asher Steinberg on the Impending Demise of Chevron Deference
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: Does Anyone on the Supreme Court Believe in Chevron Anymore? A Squib on Chevron in SAS Institute.

[In SAS Institute v. Iancu, decided last Tuesday], the petitioner proceeded to suggest that "[t]hose constitutional concerns [about Chevron] can be avoided here, however, either by holding that the Board’s practice of issuing partial final decisions fails Chevron step one, or by simply enforcing step two of Chevron by its terms . . . ."  Further still, the petitioner went on to argue that the constitutional concerns with Chevron could not only be avoided in its case were the Court to not defer to the Patent Office, but that Chevron was perfectly constitutional if correctly applied, concluding: "In short, Chevron can survive, and remain consistent with 'the Constitution of the framers' design,' [here quoting from then-Judge Gorsuch's concurring opinion in Gutierrez-Brizuela recommending Chevron's overruling] if its steps are enforced with vigor."

In his [majority opinion in SAS Institute], Justice Gorsuch summarizes this take on Chevron in a curious way, as a "suggest[ion] that we might use this case to abandon Chevron and embrace the ‘impressive body’ of pre-Chevron law recognizing that ‘the meaning of a statutory term’ is properly a matter for ‘judicial [rather than] administrative judgment.’"  Slip op. at 14 (quoting Petitioner's Br. at 41 (quoting Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976) (Friendly, J.))).  He then goes on to write that, because the statute is clear, "whether Chevron should remain is a question we may leave for another day."  This is curious in a couple ways.  

First, the petitioner never suggested abandoning Chevron, but rather only noted "powerful [constitutional] arguments" to do so and ultimately both argued that the Court should avoid deciding Chevron's constitutionality and that Chevron, properly applied, is a constitutional standard under which the petitioner would win.  Justice Gorsuch would appear to be so interested in overruling Chevron that he's reading requests to overrule it into litigants' briefs  that aren't quite there, thereby availing himself of an opportunity to suggest in an opinion for the Court that "whether Chevron should remain" is a live question.

Second, and along similar lines, his quotation from the petitioner's brief repeats, and if anything substantially enhances, the deceptiveness of petitioner's selective quotation of Judge Friendly.  Judge Friendly's opinion in Pittston Stevedoring is famous for its description of pre-Chevron deference doctrine as an incoherent mess, not for its description of a cohesive "impressive body" of pre-Chevron law that rejected deference to agency statutory interpretation.  ...

Plus: 

The majority opinion's conjuring of a phantom attack on Chevron, and of an impressive body of Judge-Friendly-endorsed, anti-deference, pre-Chevron doctrine, though odd, is probably less odd than the lead dissent's commentary on Chevron.  Justice Breyer's dissent proposed that the Court defer under Chevron to the Patent Office's regulation.  In a paragraph of his dissent joined by Justices Ginsburg and Sotomayor, but not by Justice Kagan, who otherwise joined his dissent in full, Justice Breyer pauses to offer the following remarkable interpretation of Chevron before explaining why he would defer to the Patent Office ...

And in conclusion:

In any event, after SAS Institute there is really only one Justice, Justice Kagan, who is committed on paper to upholding Chevron.  Two members of the Court, Justice Thomas and Justice Gorsuch, have argued that deference to administrative agencies on statutory interpretation is unconstitutional; another three members, Chief Justice Roberts and Justices Kennedy and Alito, joined the former's dissent in City of Arlington, which argued that courts must somehow decide, in the case of every ambiguity in a statute over which an agency has general rulemaking authority, whether Congress implicitly delegated gap-filling authority to the agency as to that particular ambiguity; and Justice Breyer, now joined by Justices Ginsburg and Sotomayor, has argued much the same thing, albeit of course in a more distinctively Breyerian Legal-Process-School-influenced way.

Lots more detail in the post.