State of Current Administrative Law Affairs

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Urvi Shukla
June 28, 2024

The current Supreme Court is keen to change the dynamics between the federal and administrative state and its principals, the Constitutional branches. This June, the Court will release its decision regarding the overturning of the Chevron doctrine—a judicial methodology that accounts for agency expertise when interpreting laws for administrative law disputes. In the upcoming decisions for Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, the court will decide whether lower courts must give weight to the agency’s version of statutory interpretation.

Since its inception, the Chevron doctrine has been heavily used, critiqued and refined; it is a prominent topic in statutory interpretation and administrative law training. If overturned, lower courts would not be required to consider the scientific expertise federal agencies employ when examining Congressionally written laws to do their job. In other words, Courts would become the sole, legitimate arbiters of what Congress writes in their laws. With confidence in expertise on the chopping block, public administration (PA) scholarship could benefit from paying attention to the upcoming decision.

Chevron: Doctrine or Deference?

Administrative law studies agency behavior under the control and constraints of the Constitutional, coequal principals in the Executive, Legislative and Judicial branches. To perform their duties within legal boundaries, agencies must employ specialized, technical proficiency in interpreting and implementing policy preferences Congress authorizes. Congress uses this expertise as a justification when delegating functions.

Chevron doctrine originates from a 1984 case, Chevron v. Natural Resources Defense Council. When the Reagan administration replaced that of Carter’s, the Environmental Protection Agency (EPA) altered its reading of unclear statutory language in the Clean Air Act (CAA). The Court outlined a framework in the majority opinion instructing lower courts on deciding whether an agency’s legal rendering is permitted. If Congress has already spoken to the issue, the court and agency must follow it. If Congress has not, the agency’s version is permissible if it “reasonab[ly]” conforms to the statute’s construction.

In deciding Chevron, the Supreme Court legitimated federal agency expertise by permitting the EPA’s new rendering of the law. Since then, administrative law training has incorporated the doctrine as a statutory interpretation technique. Despite being out of fashion at the Supreme Court, lower courts use it more often. The practice of lower courts favoring the agency’s provided version of the law is known as Chevron deference.

In Loper Bright and Relentless, the Court deals with federal agencies requiring fishing companies to have observers aboard vessels and pay for them. More importantly, the Court will opine on overturning the Chevron doctrine altogether.

Pending Cases

Critics note excessive federal agency action and authority in the modern administrative state enabled by the lower courts’ deferential practices. Agencies exercise wide latitude in their discretion and sometimes overstep their regulatory role beyond congressional intent. The fishing companies in both cases seek to limit agency reach. When lower courts simply accept agency interpretations of the day, they risk facilitating “agency flip-flop”. This eventually renders agencies ineffective with little authority or functionality; much like the EPA and the CAA.

The government argues that agencies implement policies by interpreting statutes supported by technical expertise. Regulations agencies issue typically govern minutiae that neither the Court nor Congress can handle. Imagine if the House of Representatives and Senate each wrote a bill detailing peanut butter ingredients. A debate would emerge over the hot-button topic: “When does it stop being peanut butter?” The Food and Drug Administration Assistant Director, Benjamin Gutterman identified that as the key consideration that slowed the establishment of peanut percentage in peanut butter. Lawmakers may politicize the particulars rather than make policy decisions. Agencies exhibit specialized skills and knowledge in their personnel, functions and services, encouraging Congress to delegate explicitly.

Immediate Impacts on Institutional Dynamics

Thomas Merrill suggests that lower courts could be instructed to review every regulatory issue with de novo review—a brand-new look. Only courts would determine the legality and enforceability of a regulation, even if it required scientific knowledge. Those who find the administrative state frequently in breach of authority, such as the fishing companies, eagerly await their “day in court”. Nevertheless, federal judicial procedures would be clogged from the bottom up. Lower courts’ dockets would substantially increase as they review the administrative records for each regulatory dispute. In overturning Chevron, the Court would position itself as the sole, legitimate arbiter of statutory interpretation, leading to judicial aggrandizement.

Congress could no longer construct statutes with the understanding that agency expertise would fill existing gaps in legislation. The Court could compel Congress to legislate with more specificity than for which it is currently prepared. Although this is popular and links to the democratic nature of Congress, the immediate effects of institutional incompetency cannot be ignored. It is already unproductive on many big-picture issues; can Congress handle the responsibility of more specificity when it barely manages to pass bills altogether?

The court would undermine any authority federal agencies possess to make and enforce regulations. Agency functions would reorient towards what would pass in court rather than on technical proficiency that serves their clients better. Resources would increasingly be diverted to litigating existing rules rather than enforcing them. As such, agencies could lose vital capacities, like operational flexibility, crucial in emergency management.

PA, Pay Attention

Administrative law matters are ample enough to garner attention from PA scholarship. As this Supreme Court reconsiders the value of agency expertise in court determinations, federal agencies are bound to alter their functions to ensure even existential legitimacy. PA must consider decisions that affect federal agencies and public servants.

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