Scholars Concerned About Chevron Deference ‘Retreat'

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By Patrick Gregory

June 3 — The U.S. Supreme Court's “retreat” from its deference to agencies' statutory interpretations is a cause for concern, scholars at an administrative law conference said June 2.

Many justices “are uncomfortable with where we are” on Chevron deference, and more change could therefore be coming, Ronald A. Cass, a dean emeritus of Boston University law school who specializes in administrative law, said.

Under Chevron deference, named after Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), courts are to defer to agencies' reasonable interpretations of ambiguous laws.

An example of the high court's Chevron deference retreat is its refusal to defer to the IRS's interpretation of the Affordable Care Act in King v. Burwell, 83 U.S.L.W. 4541, 2015 BL 202885 (U.S. June 25, 2015) (83 U.S.L.W. 1990, 6/30/15), the scholars said.

The retreat is problematic because it shows justices have stepped away from an attitude of humility toward agencies' expertise, Daniel A. Farber, a professor at the University of California, Berkeley law school said.

But a separate type of “retreat” is positive because it forces agencies to have robust records to defend their actions, Catherine M. Sharkey, a professor at NYU law school, said.

George Mason University's Center for the Study of the Administrative State hosted the conference, held at George Mason law school.

Humility Lacking?

In King, the court declined to apply Chevron deference, saying, “This is not a case for the IRS.”

Chevron deference assumes that Congress has delegated authority to an agency “to fill in the statutory gaps” of an ambiguous statute, the high court said.

But the court held such deference wasn't appropriate because the ACA controversy was an “extraordinary” case.

This “major questions exception” to Chevron deference shows a lack of self-awareness by the court, Farber said.

He fears that the court is reverting to a more “un-self-conscious” willingness to impose its own policy views on questions of statutory interpretation.

The exception assumes that Congress is less likely to delegate big policy issues to agencies, instead preferring the courts to decide such questions, Faber said.

But that assumption isn't always accurate, Farber said.

In King, the high court had “far less expertise” than the IRS, he said.

Farber said the court is also “far more removed” from democratic accountability and that the court should show more awareness of that fact.

Sharkey agreed that removing “the agency altogether” isn't a “helpful way” to resolve disputes.

Some Retreat Needed?

Sharkey said the high court showed another, more beneficial type of retreat from Chevron deference in Michigan v. EPA, 83 U.S.L.W. 4620, 2015 BL 207163 (U.S. June 29, 2015) (83 U.S.L.W. 2005, 6/30/15).

Michigan remanded the Environmental Protection Agency's mercury standards for failing to consider their costs, relying on Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 (1983).

State Farm held that an agency can't entirely ignore “an important aspect of the problem” Congress tasked it with considering.

The Supreme Court cited State Farm “numerous times” in refusing to defer to the EPA concerning the mercury standards, Sharkey said.

That's a positive development because “we need a harder review” of certain agency determinations, she said.

A reemergence of a State Farm-type of review will ensure that agencies have more substantial records to defend their decisions, she said.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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