Supreme Court Grants Cert to Consider Overruling or Clarifying Chevron (5/1/23)

In today’s Order List, here, the Supreme Court granted the petition writ of certiorari in  Loper Bright Enterprises v. Raimondo (SEC) (Dkt 22-451). The Court limited cert to the following issue (from the petition):

  2. Whether 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.

I have written before on the Loper petition’s trajectory where I also link the docket entries on the Supreme Court website and on SCOTUSblog. See Petition for Writ of Certiorari in NonTax Case Raising Issue of Continued Viability of Chevron (Federal Tax Crimes Blog 3/19/23; 4/30/23)), here, and see no need to repeat or extend that discussion at this time.

Added 11:20 am:

In the same order list, the court granted motions to file half (7 out of 14) of the amici briefs filed (as reflected in the docket entries). The break down (in alphabetical order) is:

Motions to File Amici Briefs Granted:

Advancing American Freedom 
Christian Employers Alliance 
Center for Constitutional Jurisprudence
Christian Employers Alliance 
David Goethel, et al. 
Pacific Legal Foundation 
Relentless, Inc., et al.

Motions to File Amici Briefs Not Granted:

Cato Institute
Buckeye Institute
Cato Institute, et al. 
Competitive Enterprise Institute
Independent Women's Law Center filed.
National Right to Work Legal Defense Foundation, Inc. 
New England Legal Foundation
Southeastern Legal Foundation

In my prior blog on Loper (linked above), I offered some discussion of Amici Briefs and will not repeat it here.

JAT Comment on denial of Cato Institute’s motion. Cato Institute’s website is here and Wikipedia page is here. My surprise should not suggest that I have read all the amici motions and tried to rank them in any way. But I think that the Cato Institute made an interesting submission in the form of analysis of a one-year dataset of Court of Appeals cases citing Chevron. That analysis is here. I have analyzed that dataset and reached somewhat different conclusions. See Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here. While my conclusions are not perfect, they are that many or most of the time Courts cite Chevron in an apparent ououtcome-determinativeay, they are not deploying Chevron to really defer to a less persuasive agency interpretation.  Here is the conclusion of my blog:

The key point is that when, as is usually the case, Courts stop at determining reasonable at Step Two, it is inconclusive as to whether they are really deferring to a less persuasive agency interpretation. Judge Newman’s insight (as noted above) is that most of the time they are not deferring to a lesser agency interpretation but are applying the interpretation they like (i.e., would apply in the absence of an agency interpretation).  And to extend that thought, as noted above, not many outcomes would change if Chevron or any vestige of deference to agency interpretations were eliminated.

Added 11:45am:

2. In some emails with colleagues, I declined to make a prediction as to ultimate outcome or splits on the Court (although I am pretty sure what Justice “Elephant in the Room” Gorsuch would do, whether in the majority or minority). Although I could not predict what the opinion of the Court will do (or who will write it or whether it will be split opinion of the Court as in Kisor v. Willkie, 588 U.S. ___, 139 S.Ct. 2400 (2019), here), I could offer what I would like the Court to do if it decides that there is something about Chevron (or real deference in any of its iterations) worth keeping. Here is my preferred solution in that situation: 

Do the Kavanaugh-esque thing (also Kennedy-esque thing) to emphasize Chevron fn. 6 for rigorous, very rigorous, statutory interpretation to eliminate ambiguity at Step One. Then for the narrow sliver of cases that might get past Step One, require courts to (i) identify the best interpretation among the reasonable interpretations that permitted them to get to Step Two and (ii) then and only then apply Chevron’s “license” to apply a less persuasive agency interpretation. (My gut and research of the cases suggests that requiring that drill will relegate deference to rarely apply to approve less persuasive agency interpretations; so Chevron and deference will not be overturned but harnessed so it is not the pervasive bogeyman that libertarian and conservative judges/Justices claim.)

I would hope that, in any event, the Court will sustain Skidmore respect (which decidedly is not deference). See Really, Skidmore "Deference?" (Federal Tax Procedure Blog 5/31/20; 2/14/21), here.

As an aside, since Chevron fn. 6 is now popular among skeptics of more aggressive deference, I am reminded of what has been claimed (but not recently) to be the most famous footnote in tax history -- Crane v. Commissioner, 331 U.S. 1. 14 n. 37 (1947), here. (Older tax lawyers will surely remember.) I suppose that, although the reference to Chevron n. 6 is now popular in some circles (e.g., Justice Kavanaugh), the point for which it is cited will hopefully appear in the text of the Loper Enterprises merits decision for the Court. Relegation of important points to footnotes reminds me of Justice Scalia's famous claim in oral argument in Cuno v. DaimlerChrysler, Inc., 545 U.S. 1165 (2006), in response to a practitioners citation of a footnote in a case:

Mr. Enrich:  In a footnote in Flast [v. Cohen], the Court specifically says, “Having now decided that there's Establishment Clause standing, we can also reach the free-exercise question without discussing whether there would be independent standing.” 

Justice Scalia:  I had not recollected that footnote. I will -- I will find it. I don't read footnotes, normally.

For some of my other musings on footnotes, see On Footnotes and the Demise of Appendix C from FTPB (Federal Tax Procedure Blog 7/28/21), here.