This post was originally published on Legal Planet. Reprinted with permission.
To cushion the shock of abandoning Chevron, the U.S. Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least 70 times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause.
The Court’s discussion began by saying that “we do not call into question prior cases that relied on the Chevron framework.” Thus, “the holdings of those cases that specific agency actions are lawful — including the Clean Air Act holding of Chevron itself — are still subject to statutory stare decisis [Latin for standing by past decisions] despite our change interpretive methodology.”
This means that “mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chevron is, at best, ‘just an argument that the precedent was wrongly decided.’” And, “That is not enough to justify overruling a statutory precedent.”
It seems clear that the specific regulation upheld by an earlier decision is protected by that previous decision. Thus, the idea that overruling Chevron makes it open season on existing regulations is an exaggeration because many of those regulations are protected by binding precedent. The next question is the scope of the protection given to an agency. The Court begins by referring to specific regulations but then talks more broadly about statutory stare decisis (precedent).
It’s significant that the Court referred to statutory stare decisis because the general rule is that cases interpreting statutes are especially difficult to overrule. Unlike a constitutional decision, a case interpreting a statute can be reversed by Congress passing a new law. Therefore, error correction by the courts is less needed for statutory precedents. That means that overruling cases from the Chevron era will be very difficult.
What happens if a regulation that was upheld under Chevron is later amended? If the features of the regulation that were challenged in the earlier case remain unchanged, that should mean that the validity of those features is still binding law. Presumably, the same should be true even if the agency repeals the earlier regulation and replaces it with a new regulation that retains those features. The innovations in the new regulation might be subject to attack, but stare decisis (respect for precedent) should protect the features inherited from the earlier regulation.
For example, EPA issued an interstate pollution rule that was based on an earlier Supreme Court decision called EME Homer. Less than a week before Loper, the Court stayed that decision for other reasons, but nowhere in that opinion was there a hint that EME Homer was in any way in doubt.
There has been talk about a surge of litigation challenging regulations that were upheld under Chevron. The Court seems to have been trying to shut the door to such challenges. Doing otherwise would have introduced chaos into many areas of regulation, with a devastating effect on everyone who had relied on those decisions — investors, agency officials, states, and Congress itself. No doubt there will be a few lawless judges — probably in the Fifth Circuit — who will ignore the Court’s directives. They will deserve summary reversal by the Supreme Court.
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Daniel Farber | July 11, 2024
To cushion the shock of abandoning Chevron, the U.S. Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least 70 times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause.
Daniel Farber | July 10, 2024
Regulations that were upheld by the courts during the Chevron era have some protection, but new regulations will be fully subject to Loper Bright rather than Chevron. The general refrain in the Loper opinion is “Skidmore deference.” What does that mean and when does it apply?
Daniel Farber | July 8, 2024
One thing about the Loper Bright decision is obvious: it overruled Chevron. So much for past law. What about the future? How should courts review agency regulations now that Chevron is gone? This post tackles a key paragraph in the Loper opinion where the U.S. Supreme Court discusses congressional delegation of authority to agencies. The Court discusses three types of statutes, and it will be crucial for judges in future cases to identify which type is present.
William Funk | July 2, 2024
I am appalled by U.S. Supreme Court Chief Justice John Roberts’ opinion in SEC v. Jarkesy because it is so dishonest in its use of precedent. Put aside for the moment whether fraud under the Securities and Exchange Commission’s (SEC) statutes is the equivalent of common law fraud, despite the clear differences between the two. The Chief Justice’s description of the law regarding “public” versus “private” rights as a basis for placing enforcement actions in an agency rather than a court is itself a fraud.
Robin Kundis Craig | July 1, 2024
The Supreme Court's decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce means that federal courts will have the final say on what an ambiguous federal statute means. What’s not clear is whether most courts will still listen to expert federal agencies in determining which interpretations make the most sense.
James Goodwin | July 1, 2024
The U.S. administrative state does not merely protect Americans against those threats that we are unable to protect ourselves from on our own. It is essential to a healthy economy, it provides a crucial platform for democratic self-government, and it functions as a great social equalizer. All of this is now at risk after the U.S. Supreme Court’s conservatives issued four separate decisions largely along ideological lines aimed at eviscerating this crucial institution. The administrative state has been built over the course of nearly 250 years, slowly and pragmatically, since the founding; it has taken just three decision days for the Court to undo much of that work.
James Goodwin | June 28, 2024
The American public is lucky to have the federal administrative state. Every day, it protects all of us from harms like heavily polluted air, consistently contaminated drinking water, and dangerous workplaces. It strengthens our democracy. And it ensures a fairer, healthier, and more inclusive economy. The good news is that the self-aggrandizing U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce does not change that. And that is because it cannot change that.
James Goodwin | June 27, 2024
Earlier this week, the conservative House Republican Study Committee (RSC) issued a memo on how the party’s lawmakers should respond to the U.S. Supreme Court’s pending decisions in a pair of cases called Loper Bright v. Raimondo and Relentless v. Department of Commerce. In these cases, the Court is considering whether to overturn a 40-year-old legal doctrine called Chevron deference, which guides reviewing courts to defer to agencies’ reasonable interpretations of their statutory authority when relevant provisions are unclear.
Daniel Farber | June 27, 2024
Months ago, the U.S. Supreme Court agreed to hear an “emergency” request to stay EPA’s new rule regulating interstate air pollution. Like most observers, I was puzzled that the Court was bothering with the case before the D.C. Circuit even had a chance to consider the merits of the challenges. Months later, the Court has finally granted the stay, over a strong dissent from Justice Barrett. EPA may be able to fix the problem with this rule very quickly, and the opinion — at least on first reading — doesn’t seem to carry broad implications for other environmental litigation.