Deference is Dead (Long Live Chevron)

Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important. This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside as a series of exclusions have narrowed its scope, and has been hollowed out from the inside as Justices have become ever more willing to find clear meaning in statutes, thereby denying deference to agencies. In recent years, agencies have won only a handful of statutory interpretation cases, and none in more than four years. Only once since 2015 has deference been outcome-determinative. At the Supreme Court level (though not, for now, in the circuit courts), deference is dead. The once-crystal Chevron has turned to mud. As a result, however, it is less likely to be formally overturned than widely believed—critics of deference and of administrative power on the Court would gain little. Instead, Chevron’s future is likely to be one of further decline, at least in the short term. This has implications for major policy areas like climate change, health care, and immigration where regulatory policy is necessary and challenges are likely to reach the Court.