USA Trends and Developments Contributed by: Kim Marie Boylan, Kevin Spencer, Nicholas Wilkins and Sean Lyons, White & Case LLP
given “the most respectful consideration” to such interpretations because “[t]he officers con - cerned are usually able men, and masters of the subject” (United States v Moore, 95 US 760, 763 (1878)). However, the level of “respectful consideration” that was appropriately afforded was often incon - sistent and unclear. Chevron and its progeny ultimately provided (or attempted to provide) a more uniform standard for courts to employ. 40 years of Chevron deference Chevron directed a two-step analysis to deter - mine if a federal agency’s interpretation of a stat - ute should be afforded deference. Under Chev - ron, a court first determined whether the statute being examined was ambiguous. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress” (Chevron at 842–843). If the statute “is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a per- missible construction of the statute” (Id). That is, the second step of the Chevron analysis required a court to determine if the agency’s interpreta - tion of an ambiguous statute was reasonable. If so, the “court may not substitute its own con- struction of a statutory provision for a reasonable interpretation made by the administrator of an agency” (Id at 844) and was required to defer to the agency’s interpretation. In the 40 years following Chevron, the US Supreme Court and other federal courts added various glosses and exceptions to the basic two- step framework. Arguably the most important of these glosses was a threshold analysis (often called Chevron “Step 0” ) of whether “Congress
delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that author- ity” (United States v Mead Corp, 533 US 218, 226–227 (2001) ( “Mead” ). Only where there was such a delegation were courts to engage in the two-step Chevron analysis. This generally limit - ed Chevron to “the fruits of notice-and-comment rule[-]making or formal adjudication” pursuant to the Administrative Procedure Act (APA) (5 United States Code (USC) Sections 551 et seq), which provides procedural rules for agency rulemaking (Mead at 230). Loper Bright’s reversal The sole question considered by the US Supreme Court in Loper Bright was “whether Chevron should be overruled or clarified” (Loper Bright at 384). The US Supreme Court was clear that “Chevron is overruled” (Id at 412). Loper Bright explains that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” (Id). Courts are no longer allowed to defer to a reasonable agency interpretation under Chev - ron; instead, courts must determine whether an agency rule or regulation is consistent with the “best reading” of the law. Loper Bright’s holding primarily rests upon the premise that Chevron is inconsistent with the APA. The US Supreme Court reasoned that, while the statute requires courts to deferentially review “agency policymaking and factfinding” , the APA directs courts to decide “all relevant questions of law” (Id at 392 (citing 5 USC Section 706)). The US Supreme Court also reasoned that the fact that the APA directs courts to “‘interpret constitutional and statutory provisions’ without differentiating between the two makes [it] clear that agency interpretations of statutes – like
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