No, Overruling Chevron Won’t Turn Judges into Policymakers (Thomas A. Berry, 7/03/24, Cato)
First, a quick recap of the (now overruled) Chevron doctrine. In Chevron v. NRDC (1984), the Supreme Court announced a new “two‐step” framework for resolving disputes over the scope of an agency’s statutory authority. Under this standard, a court must first consider “the question whether Congress has directly spoken to the precise question at issue.” This first question should be “the end of the matter” if “the intent of Congress is clear,” because courts “must give effect to the unambiguously expressed intent of Congress.” At this stage, courts must employ “the traditional tools of statutory construction” to ascertain whether “Congress had an intention on the precise question at issue.”
It was the second step that would make Chevron a landmark case. If a court finds that “Congress has not directly addressed the precise question at issue,” then under Chevron the agency’s interpretation can become determinative. In this situation, Chevron instructed that a court should “not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Instead, courts should ask “whether the agency’s answer is based on a permissible construction of the statute.” If the answer is yes, Chevron required that the court defer to the agency’s interpretation.
It is this second step that Loper Bright eliminated. The premise underlying Loper Bright is that the second Chevron step is incoherent because there is always a single best reading of a statute. “In an agency case as in any other, … there is a best reading all the same—‘the reading the court would have reached’ if no agency were involved.” As the majority put it, “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning.” And if that is so, then it “makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.”
Throughout the Loper Bright majority opinion, the court reiterated that Chevron was about who decides legal questions, not policy questions. “It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation.”