Expect Narrowing of Chevron Doctrine, High Court Watchers Say

A panel of administrative law scholars and US Supreme Court watchers says the nation’s highest court is likely to narrow—if not overturn— its decades-old precedent in Chevron v. Natural Resources Defense Council, a move that would significantly weaken the modern administrative state.

The prediction came as Bertrall Ross, a professor at the University of Virginia School of Law, said the Supreme Court also appears likely to use the major questions and non-delegation doctrines to put additional limits on agency power in the future.

The panelists said that a ruling in Loper Bright Enterprises v. Raimondo that diminishes or does away with Chevron deference completely would empower the federal judiciary by requiring courts to interpret statutes more often. They said such a ruling could also create more work for Congress, which might have to pass more specific legislation in a world where lawmakers couldn’t rely on agencies to fill in the gaps in statutes and regulatory regimes.

• Professor Allison Orr Larsen, of William and Mary Law School, suggested that, as in Kisor v. Wilkie, the Supreme Court could limit Chevron deference to “genuine ambiguities” in statutory text
• Larsen suggested that some statutory ambiguities facilitate legislative compromise, and in a world where agencies can’t resolve those ambiguities with their own interpretations, Ross said Congress might be forced to revisit the same statute on a regular basis
• Ross said recent decisions invoking the major questions doctrine indicate that the high court wants to make sure major political issues of national significance are handled by Congress, not agencies
• Certain policy solutions clearly chosen by Congress might also be impermissible under an approach to non-delegation principles set out in Justice Neil Gorsuch’s dissent in Gundy v. United States, Ross also said
• After the Supreme Court concluded in Lucia v. SEC that SEC administrative law judges are officers of the United States subject to the Constitution’s Appointments Clause, Meaghan VerGow, a partner at O’Melveny and Myers LLP, said SEC v. Jarkesy now presents the question whether ALJs at the SEC must be subject to immediate removal by the president instead of removal for cause
• If the president’s ability to remove administrative law judges is absolute, VerGow said it was an open question whether the lack of political independence on the part of these judicial officers at federal agencies could give rise to due process problems
• Aileen McGrath, a partner at Akin Gump Strauss Hauer & Feld LLP, noted recent predictions after last week’s oral arguments that the Supreme Court appeared unlikely to strike down the Consumer Financial Protection Bureau’s funding scheme
• Larsen, Ross, VerGow, and McGrath spoke Oct. 7 during the annual William and Mary Law School Supreme Court Term Preview event on a panel moderated by W&M Law Professor Aaron-Andrew P. Bruhl.