*Lauren Evers
I. Introduction
Under the Chevron doctrine, courts were required to uphold a federal agency’s interpretation of law under a two-step framework.[1] First, the context of a statute was examined to see if Congress expressed clear intent in creating the statute.[2] If the statute’s intent was clear, the agency was obligated to follow the law according to congressional intent.[3] However, if Congress’ intent for a statute was ambiguous, a reviewing court was required to defer to the agency’s choice in how to carry out the law.[4] With thousands of cases citing Chevron,[5]this framework was an analytical beacon to the administrative law community for decades.[6] The Supreme Court of the United States faced an opportunity to reconsider Chevron deference in Loper Bright Enters. v. Raimondo.[7]
Loper Bright concerned the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), enacted primarily to prevent overfishing.[8] The MSA established regional fishery councils, which developed management plans that consisted of rules designed to protect and restore the health of fisheries.[9] One such rule made by a local fishery council at the Atlantic herring fishery[10] mandated “one or more observers be carried on board” domestic fishing vessels “for the purpose of collecting data necessary for the conservation and management of the fishery,” compelling vessels to pay for data collections services.[11] The petitioners in Loper Bright challenged the rule, arguing the MSA did not authorize local councils to mandate paying for observers.[12] The district court granted summary judgment to the National Marine Fisheries Service, stating that even if petitioners’ arguments “were enough to raise ambiguity in the statutory text,” deference to the agency’s interpretation of the rule for “one or more observers to be carried on board” was required under Chevron.[13] In June of 2024,the Supreme Court of the United States ruled on Loper Bright, reversing the lower court, overturning Chevron, and upending administrative law.[14]
II. Analysis
Loper Bright leaves existing federal regulations vulnerable but does not automatically overrule them.[15] Challenges to the validity of different administrative regulations will arise only when prompted in litigation, as happened in Loper Bright.[16] Loper Bright therefore has no watershed application to existing administrative regulations.[17] The Court specifically stated, “we do not call into question prior cases that relied on the Chevron framework,”[18] indicating that future litigants cannot ask courts to overturn a prior judicial decision or interpretation solely because the ruling relied on Chevron.[19] However, new litigants can argue that an agency’s interpretation is not the interpretation a judge should apply, and is therefore unlawful, according to circuit-specific statutory interpretation precedent.[20] In such a suit, Loper Bright allows federal judges to adhere to what they conclude are the best interpretations of applicable statutes, rather than defer to the rationale of the administrative agency tasked with enforcing a specific statute, as Chevron required.[21] Although the Supreme Court aimed to restore the separation of powers by overturning Chevron, the Court may have inadvertently incentivized administrative forum shopping.[22]
The federal circuit courts are reacting differently to Chevron’s overturning.[23] For instance, the Fifth Circuit has been hesitant to overrule precedent in Chevron’s absence.[24]The Third Circuit recently declined to comment on an agency interpretation in case where parties intensely debated the issue.[25] The Third Circuit also had the opportunity to statutorily define the term “misbranding” in a case pertaining to pesticides and other warning labels, but did not “read the decision,” meaning Loper Bright, “to undermine the EPA’s authority,” finding that the statute in question expressly authorized the EPA to precisely label pesticides.[26]
The differing actions of the federal circuit courts following Loper Bright suggest that conservative jurisdictions more commonly believe that the judiciary should decide relevant questions of law where agencies have ambiguous statutory authority.[27] Just days after Chevron’s overruling, federal judges in Texas, Mississippi, and Florida blocked enforcement of the Affordable Care Act’s anti-discrimination protections related to gender-affirming care.[28] The District Court for the Northern District of Texas found that an agency exceeded its statutory authority by redefining the term “machine gun.”[29] Similarly, the Sixth Circuit Court of Appeals did not defer to an agency’s interpretation of an Act, reasoning that under Loper Bright, courts “exercise independent judgment in deciding whether an agency acted within its statutory authority.”[30] The differing actions of the circuits suggest that litigants may face more success in agency interpretation in some jurisdictions over others, providing a strong incentive for practitioners to target such jurisdictions as preferred forums for litigation.[31]
III. Conclusion
The framers of the Constitution defined Congress as the nation’s policymaker;[32] however, Chevron allowed executive branch agencies to interpret Congress’ legislation in good faith.[33] When ambiguity required agency interpretation, an agency could create policy with confidence in its constitutionality as long as the agency could articulate its foundation in Congress’ initial legislation.[34] Now, what has long been a shining beacon is no longer so; the act of policymaking does not solely belong to the two elected branches but has been shifted to the judiciary.[35] Federal judges are no longer obligated to defer to the standards set forth by administrative agencies when the statutes are ambiguous.[36] As a result, judges may expand their role into the realm of policymaking though lacking the expertise of such agencies.[37] While scholars may attempt to predict how administrative law may now develop, Loper Bright ultimately sent waves of inconsistent standards throughout the legal community and incentivized forum shopping, weakening national policymaking in the process.[38]
*Lauren is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. In addition to being a law student, Lauren works part-time at Cohen, Snyder, Eisenberg, & Katzenberg, P.A. Lauren received her bachelor’s degree in justice studies and German from James Madison University.
[1] Jeff Turrentine, The Supreme Court Ends Chevron Deference—What Now?, NRDC (June 28, 2024), https://www.nrdc.org/stories/what-happens-if-supreme-court-ends-chevron-deference.
[2] Id.
[3] Id.
[4] Id.
[5] Stephanie L. Adler-Paindiris & Patricia Anderson Pryor, Go Fish! U.S. Supreme Court Overturns ‘Chevron Deference’ to Federal Agencies: What It Means for Employers, Jackson Lewis P.C. (June 28, 2024), https://www.jacksonlewis.com/insights/go-fish-us-supreme-court-overturns-chevron-deference-federal-agencies-what-it-means-employers.
[6] Id.
[7] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).
[8] Id. at 2244–45.
[9] Id.
[10] Id. at 2256.
[11] Id. (citing 16 U.S.C. § 1853(b)(8)).
[12] Id.
[13] Id. (citing Loper Bright Enters. v. Raimondo, 544 F. Supp. 3d 82 (2021)).
[14] Id.
[15] Anthony Oncidi, et al., Supreme Court Upends Regulatory Law – Major Impact on Employers Possible!, The National Law Review (July 1, 2024), https://natlawreview.com/article/supreme-court-upends-regulatory-law-major-impact-employers-possible#google_vignette; see Turrentine, supra note 1.
[16] Id.
[17] Id.
[18] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024).
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] See Perez v. Owl, Inc., 110 F.4th 1296 (2024) (finding the agency’s argument that an interpretation has been the same for eighty years under DOL authority very persuasive); PG&E v. FERC, 113 F.4th 943 (2024) (changing the FERC’s definition of “ultimate consumer”); United States Sugar Corp. v. EPA, 113 F.4th 984 (2024) (changing the definition of when waste is a “new source” as the emission standards are higher at certain points).
[24] Kellie Mejdrich, 5th Circ. Skeptical of Nixing ESG Rule Despite Chevron’s End, July 15, 2024, Law 360, https://www.law360.com/articles/1855875.
[25] Aguilar v. AG United States, 107 F.4th 164, 170 (2024).
[26] Schaffner v. Monsanto Corp., 113 F.4th 364, 381 (3d Cir. 2024).
[27] Hannah Albarazi, With Chevron’s End, LGBTQ+ Healthcare Regs Face New Risk, July 12, 2024, Law 360, https://www.law360.com/articles/1855948/with-chevron-s-end-lgbtq-healthcare-regs-face-new-risk.
[28] Id.
[29] Nat’l Ass’n for Gun Rights, Inc. v. Garland, No. 4:23-cv-00830-O, 2024 LEXIS 131012 (W.D.N.Y. July 23, 2024).
[30] Rieth-Riley Constr. Co. v. NLRB, Nos. 23-1899/1946, 2024 LEXIS 20470 (6th Cir. Aug. 14, 2024).
[31] See Adler-Paindiris & Pryor, supra note 5.
[32] U.S. Const., art I.
[33] See Turrentine, supra note 1.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] See Albarazi, supra note 27.
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