Fun Chevron: AI Weighs in on Chevron’s Future (and Golsen) (12/12/23)

Chevron deference and its possible demise is much in the news recently with the Supreme Court’s acceptance of two parallel cases that address the following question: 

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.

Loper Bright Enterprises v. Raimondo (SEC) (Sup. Ct. Dkt. 22-451), here; and Relentless, Inc. v. Department of Commerce (Sup. Ct. Dkt 22-1219), here.

I decided to ask various AI platforms what they could offer on whether the Supreme Court will overrule Chevron deference. Here are the answers from three AI platforms (alphabetical order by AI platform without only formatting (such as bold face) offered by the AI; Chevron is not formatted) [Note that I use the free-to-me versions of each platform]:

Bard (Google)

Whether the Supreme Court will overrule Chevron deference is uncertain. While there are indications suggesting both possibilities, ultimately the Court's decision will depend on the specific case and the justices' interpretations of the law.

Arguments in favor of overruling Chevron deference:

• Increased judicial activism: Some argue that Chevron deference grants excessive power to federal agencies, diminishing the role of the judiciary in interpreting the law.
• Lack of democratic accountability: Others argue that agencies are not accountable to the same democratic processes as elected officials, making Chevron deference potentially undemocratic.
• Concerns about agency expertise: Some believe that agencies may not always have the necessary expertise to interpret complex laws.

Arguments in favor of retaining Chevron deference:

• Promotes administrative efficiency: Chevron deference allows agencies to implement and enforce laws without lengthy court challenges, promoting efficiency.
• Recognizes agency expertise: Agencies often possess specialized knowledge and experience relevant to the laws they administer.
• Reduces judicial workload: Deference to agency interpretations can reduce the burden on the courts, allowing them to focus on other matters.

Recent developments:

• Supreme Court agrees to hear case challenging Chevron deference: In May 2023, the Supreme Court agreed to hear a case related to the National Marine Fisheries Service's interpretation of a fishing law. The case could have significant implications for Chevron deference.
• Conservative justices express skepticism: Some conservative justices have expressed skepticism towards Chevron deference, suggesting a potential shift in the Court's stance.

Conclusion:

It is too early to predict whether the Supreme Court will overrule Chevron deference. The Court's decision will likely depend on the specific arguments presented in the case and the justices' individual interpretations of the law. However, recent developments suggest that the Court may be more receptive to challenges to Chevron deference than in the past.

Here are some resources that provide further information on this topic:

• Deference and its Discontents: Will the Supreme Court Overrule Chevron? (CRS Report): https://thehill.com/opinion/judiciary/4238063-what-happens-if-the-supreme-court-overturns-chevron/
• Supreme Court to Consider Major Case on Power of Federal Regulatory Agencies (SCOTUSblog): https://www.scotusblog.com/2021/11/chevron-deference-at-stake-in-fight-over-payments-for-hospital-drugs/
• Supreme Court to Consider Overruling Chevron Deference (Baird Holm LLP): https://www.theregreview.org/2022/07/14/pierce-chevron-deference/  [JAT Note: the link is to an article by Richard Pierce, a noted expert in administrative law]

ChatGPT (OpenAI):

As of my last knowledge update in January 2022, I cannot provide the most current information on whether the Supreme Court has overruled Chevron deference or made any significant changes to the doctrine. The fate of Chevron deference is subject to the decisions and considerations of the Supreme Court justices, and developments may have occurred since then.

The question of whether the Supreme Court will overrule Chevron deference has been the subject of speculation and discussion. Some justices have expressed reservations about the doctrine, suggesting that it may be reconsidered in the future. However, predicting specific actions of the Supreme Court is challenging.

For the latest information on the status of Chevron deference and any recent Supreme Court decisions or developments, I recommend checking legal news sources, court opinions, and authoritative legal commentary for updates beyond my last knowledge update in January 2022.

CoPilot (Microsoft)

The Supreme Court has not overruled Chevron deference yet. However, the Court has narrowed the scope of Chevron deference in subsequent cases, holding that only the agency interpretations reached through formal proceedings with the force of law, such as adjudications, or notice-and-comment rulemaking, qualify for Chevron deference, while those contained in opinion letters, policy statements, agency manuals, or other formats that do not carry the force of law are not warranted a Chevron deference1. In such cases, the Court may give a slightly less deferential treatment to the agency’s interpretation, giving a persuasive value under the Court’s “Skidmore deference” analysis1.

It is worth noting that the Supreme Court’s composition changes over time, and the Court may revisit the Chevron doctrine in the future1.

Addendum (added on 12/12/23 10:30am)

I tried one more search but limited to Bard, the Google AI platform that gave the more comprehensive answer on the Chevron prediction. I have highlighted an error in citation and a couple of answers that I was unsure of as stated.

Search: What is the Tax Court's Golsen Rule

The Tax Court's Golsen Rule is a well-established principle that influences how the court decides cases. Here's what you need to know about it:

Origin and Purpose:

• The Golsen Rule stems from the 1971 case Golsen v. Commissioner (244 F. Supp. 680 (S.D.N.Y. 1971)).
• The purpose of the rule is to avoid unnecessary appeals.

Core Principle:

• Under the Golsen Rule, the Tax Court will generally follow the precedent of the U.S. Court of Appeals for the circuit where the taxpayer resides.
• This means that even if the Tax Court disagrees with the appellate court's decision, it will apply it to avoid a likely reversal on appeal.

Impact and Criticisms:

• The Golsen Rule can lead to different results for taxpayers in different geographic areas, even if the facts and legal issues are identical.
• This has been criticized for undermining uniformity and fairness in the tax system. 
• However, the Golsen Rule also promotes efficiency by reducing the number of appeals and facilitating predictable outcomes for taxpayers.

Application and Exceptions:

• The Golsen Rule applies to both published and unpublished opinions of the relevant circuit court.
• However, there are some exceptions to the rule, such as when:
• The appellate court's decision is clearly erroneous.
• The court of appeals has not ruled on the issue.
• The Tax Court believes that a different result is necessary to ensure national uniformity or fairness.

Current Relevance:

• While the Golsen Rule remains a cornerstone of the Tax Court's practice, it is facing increasing scrutiny due to concerns about its potential to create geographically disparate outcomes.
• Recent court decisions and legislative proposals suggest a potential shift towards a more uniform application of the law in the Tax Court.

Here are some resources for further information:

• In that Golsen v. Commissioner: https://law.stanford.edu/courses/taxation-i/
• Tax Court Website: https://www.ustaxcourt.gov/
• Overview of the Golsen Rule: https://libguides.depaul.edu/c.php?g=929106&p=6693625