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Professor Gary Lawson has offered a remarkable account of the fate of the Chevron doctrine during a recent year in the Supreme Court, from August 2021 to June 2022. When one examines lower court decisions, petitions seeking review of those decisions, briefs filed by the parties, and transcripts of oral arguments, Chevron made frequent appearances during the year. But when one reads the published opinions of the Court, one finds virtually no reference to Chevron. Based on the published opinions of the Court, it was as if the Chevron decision did not exist.

The status of Chevron as a ghostly doctrine is even more striking, given its ubiquity for more than three decades. Chevron is the most cited decision in administrative law. Most commonly, Chevron refers to a framework for reviewing interpretations by agencies of the statutes that they administer: first, a court exercises independent judgment to ascertain whether Congress has answered the question; if not, the court considers whether the agency’s interpretation is a reasonable one. By one count, the Court itself applied Chevron’s “two step” approach to judicial review in over one hundred cases. Then, starting in 2013, various Justices began issuing separate opinions complaining about one or more aspects of Chevron. After 2016, the two-step doctrine ceased to be used by the Court in reviewing agency determinations of the meaning of the laws they administer. Justice Alito, a close witness to what was happening, observed that the Court was “simply ignoring Chevron,” which he characterized as “an important, frequently invoked, once celebrated, and now increasingly maligned precedent.”

The Court has recently granted certiorari in a case called Loper Bright Enterprises v. Raimondo, which presents the question “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” So perhaps clarification of Chevron’s status will be forthcoming in the 2023 Term. Or perhaps not: the Court could confine itself to the second half of the question presented, whether statutory silence should be construed as a condition sufficient to trigger Chevron deference. Or, as in the cases of 2021-22 discussed by Professor Lawson, the Court could decide once again to resolve the question at issue in Loper Bright without any mention of Chevron.


Administrative Law | Law | Supreme Court of the United States