Overruling Chevron Without a Coherent Theory of Statutory Interpretation and the Court-Congress Relationship

Abstract

The Supreme Court has not ever had, a coherent theory of the Court-Congress relationship in statutory interpretation. Nevertheless, the Court overruled one of the most cited cases in the U.S. Reports—Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.—based on a theory of statutory-interpretation separation of powers. What’s more, the Court did so by deploying a theory inconsistent with much of its own, actual, ongoing, statutory-interpretation practice in most other cases. 

If one read only Loper Bright, one would think the Court imagines itself in an ongoing dialogue with Congress. One would think the Court is not eager to impose its own policy values on Congress. One would think the Court is interested in effectuating legislative intent and furthering interpretive predictability.  One would be wrong. The Loper Bright pronouncements were convenient for purposes of overruling Chevron, but they do not reflect with any accuracy the current Court’s own prevailing approaches to statutory interpretation. The stakes of these inconsistent judicial  pronouncements are especially high: in overruling Chevron, Loper Bright transfers even more interpretive authority to courts, and so it is more important than ever that the Court’s approach to statutory interpretation have a legitimate foundation.

The opinion reads like a statutory-interpretation manifesto—and suggests that Chevron is being overruled for violating its precepts. The Court proclaims that canons of interpretation must reflect the realities of the congressional drafting process to effectuate legislative intent. It says canons are precedents and that canons are legitimate only to the extent they originated at or before the founding. The Court asserts its view of statutory meaning is originalist, fixed at the time of enactment. It argues the Chevron doctrine was uniquely unworkable.

Actually, no. Most of the Court’s interpretive canons do not reflect congressional drafting practice, and the Court usually does not view that fact as delegitimizing. Some justices even now expressly disavow interest in congressional practice for purposes of interpretation. This Court has said instead that it is determined to displace any inquiry into what Congress meant or what Congress intended with a new focus on “ordinary meaning” and ordinary people, rather than congressional “insiders.”  And contra Loper Bright, the Supreme Court creates new canons all the time—Chevron was not an outlier in that regard. And despite the stare decisis discussion in the opinion,, the Court does not usually treat canons as precedents or as common law that can be overruled.

As to Chevron’s “unworkability,” as the Court charged, any unworkability associated with Chevron was due to the Court’s own failure, across all of statutory interpretation, to create any predictable hierarchy of interpretive rules with stare decisis effect and the Court’s decisions to make ambiguity trigger most of the Court’s interpretive doctrines. Chevron shared those features—a lack of interpretive order and an ambiguity threshold—with many other interpretive rules, to be sure, but only because Chevron itself famously turned on the “traditional tools of statutory interpretation,” not because of something inherent to Chevron. The Court itself created this unworkable regime for all statutory questions. Chevron’s demise will not cure it.

If one takes Loper Bright’s pronouncements about statutory interpretation seriously, most of the Court’s interpretive practices are now invalid because they fail the tests the opinion announces. It does not seem plausible that the Court intended that kind of ripple effect. Any critical part of any inquiry into statutory interpretation is what the prevailing theory tells us about the interbranch relationship. Loper Bright is purportedly an opinion about precisely that, but the extent to which the Court’s pronouncements contradict its usual practice obscures, rather than clarifies, any theory of statutory-interpretation separation of powers.