The Statutory Interpretation of Tug-of-war: Chevron No Longer
Ryan Kim
“Chevron is overruled.”[1] Chief Justice Robert’s three words echo a new era of uncertainty into the domain of statutory interpretation. Some raise concerns about the dismantling of the federal agencies’ role in administering Congress’ laws, some criticize the action as a judicial power grab, and yet some are unperturbed by the ruling, claiming that deference has always been built into law. This blog aims to provide a brief overview of the U.S. Supreme Court’s decision in Loper Bright, summarizing the judicial implications and analyzing the new framework of agency deference through various perspectives.
On July 17th, 2023, a group of fishermen, represented by the former U.S. Solicitor General Paul Clement and the Cause of Action Institute, filed an appeal to the U.S. Court of Appeals for the District of Columbia.[2] In their action, they challenged a rule promulgated under the Magnuson-Stevens Act, which had imposed the cost of federal observers and third party monitors onto the fishing vessels themselves[3], as opposed to being subsidized by the National Marine Fisheries Service, the Federal agency charged with carrying out the statute’s provisions.[4] The lower court previously ruled against the fishermen, relying on the Chevron framework to defer to the agency in light of the ambiguity produced by the statutory silence in the act.[5] In their new action, the plaintiff’s counsel sought much more than to challenge the bill for the salaries of the federal observers – they sought to overrule Chevron.[6] After a hearing on January 2024, the Supreme Court of the U.S. held for the appellants, overruling the forty-year old Chevron doctrine on June 28, 2024. [7]
The original Chevron doctrine stemmed from a Clean Air Act (CAA) permitting dispute, a butting of heads between the Environmental Protection Agency’s (EPA) “bubble” theory and the Natural Resources Defense Council’s challenge to the EPA’s interpretation of the word “source”.[8] Under the EPA’s theory, existing plants would be allowed to install or modify a piece of equipment without a permit. The NRDC argued that “source” referred to each individual source of emission, thus requiring a permit for any installation or modification to an existing power plant.[9] On June 25, 1984, the Supreme Court held that, considering the ambiguity in the CAA, the EPA’s interpretation of the statute should be granted deference, establishing the Chevron Deference and its two-step framework.[10]
Under the Chevron two-step, the reviewing court is to first ask: does the language of the statute answer the question at issue, or is the language ambiguous and open to interpretation? Courts will use tools of statutory interpretation to answer this first question. If the language of the statute is ambiguous, then the reviewing court will proceed to the second step and inquire: is the agency’s interpretation of the ambiguous language reasonable? If the agency’s interpretation is found to be reasonable, then the reviewing court will defer to the agency’s interpretation, allowing the agency to apply their expertise in implementing the given statute.[11] This two-step framework brought about a new era of statutory interpretation. Since the initial Chevron decision, the deference framework had been cited by federal courts more than 18,000 times. [12]
The Loper Bright decision recently supplanted the Chevron framework with a new framework of judicial review. In his majority opinion, Chief Justice Roberts described the Chevron doctrine as having been inconsistent with the Administrative Procedures Act (APA) [13], which directs courts to “decide legal questions by applying their own judgment,” a principle that “makes clear that agency interpretations of statutes . . . are not entitled to deference under the APA.”[14] The Court posits that judicial review of agency interpretations under the new Loper Bright framework will better reflect the intended scope of review outlined in §706 of the APA.[15][MS19]
Under the Loper Bright framework, the reviewing court will first begin by asking: does the relevant statutory provision present a question of law, or an area where Congress has given the agency discretion? This first question operates to bifurcate questions of law and questions of policy, where words such as “appropriate” or “reasonable” hint towards agency discretion – a question of policy.[16] If the reviewing court finds a question of policy, the court will only review the decision if the decision was arbitrary or capricious. However, if the court finds a question of law, the reviewing court will further consider whether the agency’s interpretation of the statute was reasonable, exercising their independent judgment in deciding whether an agency has acted within its statutory authority. This independent consideration represents a stark departure from the deference framework previously employed under Chevron. [17]
Legal scholars debate the practical consequences of the Loper Bright framework, providing disparate theories on the new landscape of judicial review after the overruling of Chevron. On one side, scholars protest the judicial encroachment on policy decisions traditionally enacted and administered by the branches of the government that are most accountable to the public.[18] These proponents of Chevron contrast the plethora of accountability checks that exist within federal agencies (e.g. Congress’ control of funding, Senate’s confirmation of senior leadership nominees, public accountability via APA rules on public notice & comment) with the lack of safety valves within the judiciary system.[19] For these scholars, the Loper Bright decision reflects a substantial dismantling of the essential role that federal agencies play in administering Congress’s laws that “operate to protect public health, worker safety, the integrity of financial markets, or the quality of our air, food, water, and medicine.”[20] This concern is exacerbated by the lack of technical expertise that the courts hold in relation to the expert agencies. As the argument goes generalist, courts often lack the requisite in-depth knowledge and experience to ensure that Congress’ laws are effectively applied.
On the other end of the spectrum, the supporters of the Loper Bright decision cite the diminishing reliance that courts have placed on the Chevron doctrine. They suggest the lack of Chevron’s usage in U.S. Court of Appeals decisions in the past decade reflects the judicial system’s skepticism towards the Chevron deference.[21] In 2022, 67% of agency interpretation disputes were resolved at the first step of the Chevron framework, refusing to proceed to the second step where the question of agency deference comes into play.[22] Furthermore, the proponents highlight the newfound clarity in statutory interpretation offered under Loper Bright: agencies will receive deference for questions of policy, those that were clearly delegated to them by Congress, but questions of law will be aptly reserved for interpretation by the judicial system.
The U.S.’s new system of judicial review of administrative action under the Loper Bright framework now resembles that of the German legal system, where the agencies are subject to strong judicial review of administrative action. Although German courts distinguish between discretionary decisions and legal interpretations, the courts allow discretion only for two small carve outs of agency decision making: administrative decisions (ermessen) and margin of appreciation (Beurteilungsspielraum).[23] When the German courts analyze their own reviewability of the agency’s decision, they look for “words such as ‘can’ or ‘may’ in the statute [that] trigger administrative discretion and signal to courts that the agency has nonreviewable substantive decision-making authority.”[24] The search for permissive language resembles the emphasis that Chief Justice Roberts placed on words such as “appropriate” or “reasonable” appearing in statutes as justifying recognition of agency discretion.
Furthermore, the new Loper Bright framework in the U.S. reflects the change that the United Kingdom (UK) made in 1969 through their decision in Anisminic Ltd. v. Foreign Compensation Commission, which established that British courts are the conclusive arbiters on all questions of law”[25] The UK system, however, more openly recognizes the role of agencies in making policy decisions, employing “different degree[s] of deference” depending on the subject matter.[26] For example, matters involving human rights receive a “probing ‘proportionality’ review”[27] while those involving state security receive “nearly no review.”[28] Although some British scholars argue that such a system of judicial review altogether has been erratic,” they simultaneously recognize the advantages of employing such a “contextual approach.”[29]
As with most things, including statutory interpretation, everything must be put in context. The beginning of 2025 in the U.S. has been characterized by a drastic dismantling of federal agencies. From budget cuts, layoffs, to discontinuations of entire agencies, the ability of federal agencies to fulfill their role as administrators of Congress’ laws has been significantly diminished by the broad cutdown of federal agencies. [30] If the increased scrutiny approach of judicial review, represented in the Loper Bright framework, is our method of choice in assessing agency interpretation of statutes, should the agencies be further burdened by the curtailing of resources and staff? The broader implications of the Loper Bright decision must be read in context, and although the newfound system resembles those utilized in foreign jurisdictions, the potential dangers of further dismantling the federal agencies should be subject to increased scrutiny.
[1] Loper Bright Enterprises v. Raimondo, 603 U.S. 369 at 412 (2024).
[2] Brief for Petitioners, Loper Bright v. Raimondo, 458 U.S. App. D.C. 600 (2022) (No. 21-5166).
[3] Magnuson-Stevens Fishery Conservation and Management Act Industry-Funded Monitoring, 85 Fed. Reg. at 7,417-18 (Feb. 7, 2020).
[4] Brief for Petitioners at 15, Loper Bright v. Raimondo, 458 U.S. App. D.C. 600 (2022) (No. 21-5166).
[5] See Loper Bright v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022), vacated and remanded sub nom.
[6] Brief for Petitioners at 17, Loper Bright v. Raimondo, 458 U.S. App. D.C. 600 (2022) (No. 21-5166).
[7] See Loper Bright, 603 U.S. 369.
[8] See Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984); See 42 U.S.C. § 7502.
[9] Chevron, 467 U.S. at 860.
[10] Id. at 866.
[11] Id. at 843.
[12] Amy Howe, Supreme Court strikes down Chevron, curtailing power of federal agencies, SCOTUSblog (Mar. 1, 2025, 9:00 AM).
[13] Administrative Procedure Act, 5 U.S.C. §§ 551–559 (2006).
[14] Loper Bright, 603 U.S. at 371.
[15] See Id.
[16] See Id.
[17] See Chevron 467 U.S. 837.
[18] Howe, supra note 12.
[19] Jeff Turrentine, The Supreme Court Ends Chevron Deference—What Now?, NRDC (Mar. 1, 2025, 9:00AM).
[20] Id.
[21] See Nicholas Bednar, Chevron on the Eve of Loper Bright, 34 Widener Commonwealth L. Rev. 1 (2024).
[22] Id. at 15.
[23] Kent Barnett & Lindsey Vinson, Chevron Abroad, 96 Notre Dame L. Rev. 621, 639 (2020).
[24] Id. at 640.
[25] Barnett & Vinson, supra note 23, at 651.
[26] Id. at 652.
[27] Id.
[28] Id.
[29] Id.
[30] See Exec. Order No. 14,217, 90 F.R. § 10577 (2025); see also Exec. Order No. 14,238, 90 F.R. § 13043 (2025).