Today, TechFreedom filed an amicus brief arguing that the Supreme Court should keep Chevron v. Natural Resources Defense Council (1984) on the books, but eliminate the Chevron “doctrine” that has grown out of that decision.
Under the Chevron “doctrine,” courts defer to how administrative agencies interpret any ambiguities in their enabling statutes. It’s a startling proposition—the notion that government officials, rather than courts, provide the legal analysis that counts. TechFreedom’s brief urges the Court to stop reading Chevron so broadly.
“The Court should keep the Chevron decision, but ditch the Chevron doctrine,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “The doctrine—under which deference is triggered in a wide array of cases—improperly shifts the judicial power to the executive branch. Properly construed, Chevron does not require deference nearly so often. On the contrary, deference should rarely if ever be granted unless a statute uses an open-ended term such as ‘reasonable’ or ‘appropriate.’”
“In restating what Chevron stands for, the Court should make a few key points,” Barthold continued. “Among other things, deference to an agency is never ‘reflexive.’ Statutory silence never triggers deference. And judges, before they afford deference, should always deploy the traditional tools of statutory interpretation, in an effort to nail down a statute’s meaning for themselves. Chevron says precisely that, in fact—in a footnote that warrants greater attention.”
“Once the baggage of the Chevron ‘doctrine’ is lifted, the Chevron decision strikes the right balance,” Barthold concluded. “It respects agency expertise, as well as congressional judgment, as well as the judiciary’s role as final arbiter of the law’s meaning. Judges should defer to agencies only when it’s abundantly clear that that’s what Congress intended for them to do.”
The case is Loper Bright Enterprises v. Raimondo, No. 22-451 (U.S.).
Find this brief and release on our website, and share it on Twitter, Bluesky, Mastodon, Facebook, and LinkedIn. We can be reached for comment at firstname.lastname@example.org. Read our related work, including:
- Chevron Is Dead, Long Live Chevron, FedSoc Blog (May 10, 2023)
- No, Chevron Deference Will Not Save the FTC’s Noncompete Ban, Truth on the Market (Feb. 14, 2023)
- West Virginia v. EPA: Sound and Fury, Signifying What?, WLF Legal Pulse (Jul. 5, 2022)
- The Constitutional Revolution That Wasn’t: Why the FTC Isn’t a Second National Legislature, Concurrences (June 27, 2022)
- Our podcast #311: Administrative Law, and Why You Should Care (Feb. 3, 2022)
- Regulator Beware, City Journal (Dec. 2, 2021)
- Media Ownership Rules, and Perhaps Much More, at Stake in FCC v. Prometheus, The Bulwark (Dec. 8, 2020)
- Barrett Is Wild Card For Tech Antitrust Cases At High Court, Law360 (Oct 2, 2020)
TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.