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When federal agencies like the EPA or FDA make rules that affect your life, who gets the final say on what those rules mean?
For 40 years, the answer was largely the agencies themselves. Courts gave them wide latitude to interpret the laws they enforced, under a legal doctrine called Chevron deference.
That era is over. In June 2024, the Supreme Court threw out Chevron deference entirely, fundamentally changing how federal agencies operate and how courts review their decisions.
The shift affects everything from environmental regulations to healthcare rules to financial oversight. It’s already triggering new lawsuits challenging agency authority and forcing Congress to write clearer laws.
What Is Judicial Deference?
Federal courts sometimes give weight to an administrative agency’s interpretation of a statute or regulation. This principle, called judicial deference, recognizes that agencies often know more about their specialized areas than generalist judges do.
Congress frequently passes laws that outline broad goals while leaving specific details to federal agencies. The Environmental Protection Agency handles pollution control. The Food and Drug Administration oversees food and drug safety. The Federal Communications Commission regulates communications.
When questions arise about what a law means or how a regulation should work, courts must decide how much weight to give the agency’s interpretation.
This creates tension in our system of government. Agencies have specialized expertise and staff who focus on complex technical issues. A judge hearing an environmental case may not understand the science behind pollution control as well as EPA scientists do.
But the Constitution gives courts the ultimate authority to interpret the law. The judiciary is supposed to serve as a check on executive branch agencies, ensuring they don’t exceed the authority Congress gave them.
Different deference doctrines reflect ongoing efforts to balance these competing principles. The recently overturned Chevron deference heavily favored agencies. The older Skidmore deference, now making a comeback, takes a more flexible approach.
How Administrative Agencies Work
Agency Authority and Rulemaking
Administrative agencies are specialized bodies within the executive branch that Congress creates to address specific issues and implement laws. The EPA tackles pollution, the FDA ensures drug safety, and the Securities and Exchange Commission regulates financial markets.
Congress often enacts statutes that establish broad policy goals without specifying every detail of implementation. Lawmakers may lack the time, resources, or technical expertise to legislate with such precision. Instead, they delegate authority to agencies to create detailed rules that translate broad mandates into concrete, enforceable standards.
This process of creating detailed rules is called rulemaking. Agencies handle this task because they develop specialized knowledge, employ experts, and can focus on the intricacies of their fields. Determining safe levels of chemicals in drinking water, for example, requires scientific expertise that the EPA is designed to possess.
Public Participation in Rulemaking
The rulemaking process in the United States emphasizes transparency and public participation. Federal law, primarily the Administrative Procedure Act, generally requires agencies to publish proposed rules in the Federal Register and provide opportunities for public comment.
This “notice-and-comment” period allows citizens, businesses, advocacy groups, and other interested parties to voice opinions, provide data, suggest alternatives, and point out potential problems. Agencies must consider these public comments when developing final rules.
The website Regulations.gov serves as a central hub where individuals can find proposed rules, submit comments electronically, and track the rulemaking process across agencies.
Public participation has become more important since Chevron’s demise. When agencies thoroughly consider and respond to public input, they build stronger justifications for their rules. Under the Skidmore deference standard that’s now prominent, courts assess factors like “thoroughness evident in consideration” and “validity of reasoning” when deciding how much weight to give agency interpretations.
Well-documented public participation can make agency interpretations more persuasive to courts. Conversely, the shift toward stricter judicial scrutiny gives agencies greater incentive to build comprehensive administrative records that demonstrate their rules rest on expertise and thorough consideration of public concerns.
The Rise and Fall of Chevron Deference
The Landmark Chevron Case
Chevron deference originated from the Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The case involved the EPA’s interpretation of “stationary source” under the Clean Air Act Amendments of 1977.
During the Carter administration, the EPA adopted one definition. When the Reagan administration took office in 1981, the EPA changed course and adopted a different, plant-wide definition called the “bubble concept.” This allowed existing plants with multiple pollution sources to install or modify equipment without triggering strict permit requirements, as long as overall plant emissions didn’t increase.
The Natural Resources Defense Council challenged this new interpretation. The Supreme Court sided with the EPA, not necessarily because it agreed with the policy choice, but because it established a new, highly deferential standard for reviewing agency statutory interpretations.
The Court held that when a law is ambiguous, courts should defer to reasonable interpretations by the agency responsible for administering that law.
The Chevron Two-Step Test
The Chevron decision created a famous two-step framework for courts reviewing agency interpretations:
Step One: Did Congress directly address the precise question at issue? If the statute’s meaning was clear and unambiguous, that clear intent governed. Both courts and agencies had to follow Congress’s unambiguous will.
Step Two: If the statute was silent or ambiguous on the specific issue, courts asked whether the agency’s interpretation was “reasonable” or based on a “permissible construction” of the statute. If so, courts had to defer to the agency, even if they disagreed or preferred a different interpretation.
Some courts developed an intermediate “Step Zero” inquiry, asking whether the agency actually recognized the statute was ambiguous and was consciously exercising delegated authority to fill a gap. If the agency believed the statute was clear, some courts wouldn’t defer to its interpretation.
Why Chevron Made Sense
Several rationales supported Chevron’s strong deference:
Agency Expertise: Administrative agencies possess specialized knowledge and practical experience in their regulatory fields. The EPA presumably knows more about environmental science than a generalist federal judge. This expertise makes agencies better equipped to understand complex statutes and implement them effectively.
Congressional Delegation: When Congress enacts statutes with ambiguities or gaps, Chevron assumed this implicitly delegates gap-filling authority to the administering agency. Ambiguity wasn’t seen as legislative oversight for courts to correct, but as accepted delegation of policymaking discretion.
Political Accountability: Unlike federal judges with life tenure, agencies are part of the executive branch headed by the elected President. This makes agencies more accountable to voters. Policy choices in resolving statutory ambiguities should come from politically accountable branches rather than unelected judges.
When Chevron Applied
Chevron deference wasn’t universal. It generally applied only to agency interpretations with the “force of law,” typically meaning interpretations from:
- Notice-and-comment rulemaking under the Administrative Procedure Act
- Formal adjudications following trial-like proceedings
Less formal interpretations—opinion letters, policy statements, agency manuals, enforcement guidelines, litigation briefs—didn’t qualify for Chevron’s strong deference. These received weaker Skidmore deference based on their “power to persuade.”
The Supreme Court’s 2001 decision in United States v. Mead Corp. helped establish these boundaries of Chevron’s applicability.
Growing Criticism
Despite its long influence, Chevron faced increasing criticism that ultimately led to its downfall:
Separation of Powers: Critics argued Chevron violated constitutional separation of powers by letting executive agencies effectively make law (a legislative function) and interpret law (a judicial function). This concentrated too much power in administrative agencies.
Abdication of Judicial Duty: Chevron required judges to abandon their core constitutional responsibility to “say what the law is,” as established in Marbury v. Madison. Instead of exercising independent judgment, courts often had to accept agency interpretations they found incorrect.
Inconsistency: The determination of whether a statute was “clear” or “ambiguous” at Step One was highly subjective, leading to inconsistent application by different courts. This made deference unpredictable.
Agency Overreach: Chevron emboldened agencies to push statutory boundaries and change interpretations when new administrations took office. This created regulatory instability and made it difficult for businesses and individuals to rely on consistent frameworks.
Conflict with the Administrative Procedure Act: Critics argued Chevron contradicted Section 706 of the APA, which states that reviewing courts “shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” This seemed to mandate independent judicial review, not deference.
The concept of “statutory ambiguity” became particularly problematic. What one judge found ambiguous, another might find clear. The Loper Bright Court ultimately rejected the premise that ambiguity inherently signals congressional delegation of interpretive authority to agencies.
Skidmore Deference: The Flexible Alternative
The Original Skidmore Case
Long before Chevron, the Supreme Court established a different approach in Skidmore v. Swift & Co. (1944). The case involved meatpacking plant employees required to stay on company premises several nights weekly to respond to fire alarms.
The workers were paid for time actively responding to alarms but sued for overtime pay for “waiting time” when on call but not working. The Department of Labor had issued guidance on how such waiting time should be treated under the Fair Labor Standards Act.
The Supreme Court didn’t find the Labor Department’s interpretation legally binding. But Justice Jackson wrote that the agency’s “rulings, interpretations and opinions, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”
This established deference based on persuasiveness rather than command.
The Skidmore Factors
Instead of a rigid test, Skidmore provides factors courts should consider when weighing agency interpretations. The weight depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”
The key Skidmore factors are:
Thoroughness of Consideration: How comprehensively did the agency examine the issue? Did it consider relevant data, arguments, and alternatives? Well-researched, detailed analysis is more persuasive.
Validity of Reasoning: Is the agency’s logic sound and its arguments coherent? Does the interpretation make sense given the statutory language and purpose?
Consistency: Has the agency maintained this interpretation over time? Interpretations aligned with previous and subsequent agency positions are more reliable than sudden, unexplained shifts.
Other Persuasive Factors: This includes agency expertise, whether the interpretation was made around the statute’s enactment, the formality of the process used, and other elements that enhance persuasiveness.
Skidmore operates on a “sliding scale.” The more thorough, well-reasoned, consistent, and persuasive an agency’s interpretation, the more weight a court gives it. Courts exercise their own judgment but can be informed and persuaded by agency work.
Traditional Applications
Historically, Skidmore applied to agency interpretations that didn’t carry the “force of law” necessary for Chevron deference:
- Opinion letters responding to specific inquiries
- Policy statements outlining agency views
- Agency manuals guiding staff
- Enforcement guidelines explaining enforcement discretion
- Interpretive rules clarifying existing laws without full rulemaking
These agency pronouncements, while helpful to the public, weren’t seen as having the same binding legal status as formal regulations.
Skidmore’s flexibility makes it particularly relevant after Loper Bright. Unlike Chevron’s formulaic approach, Skidmore’s multi-factor test allows courts to calibrate deference based on specific circumstances and the quality of agency interpretation. This aligns with the Supreme Court’s emphasis on courts exercising “independent judgment” while still acknowledging agency expertise.
Comparing the Two Approaches
Before Loper Bright dramatically altered the landscape, Chevron and Skidmore represented distinct approaches to judicial review. The core difference lay in the strength and nature of deference: Chevron often mandated deference to reasonable agency interpretations of ambiguous statutes made through formal processes, while Skidmore offered weaker, discretionary deference based on “power to persuade.”
| Feature | Chevron Deference | Skidmore Deference |
|---|---|---|
| Legal Basis | Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984) | Skidmore v. Swift & Co. (1944) |
| When Applied | Statute is ambiguous; agency interpretation through formal process with “force of law” | Agency offers interpretation, often through informal means |
| Judicial Test | Two-Step: (1) Has Congress spoken clearly? (2) If ambiguous, is agency interpretation reasonable? | Multi-factor “power to persuade”: thoroughness, validity of reasoning, consistency, other persuasive factors |
| Level of Deference | Strong, often mandatory. Courts generally had to defer if statute was ambiguous and agency interpretation reasonable | Variable, persuasive “respect” on sliding scale based on interpretation’s persuasiveness |
| Type of Agency Action | Formal actions: notice-and-comment rules, formal adjudications | Informal actions: interpretive rules, policy statements, opinion letters, manuals |
| Outcome | Court generally upholds agency’s reasonable interpretation of ambiguous statute | Court gives weight based on persuasiveness; may or may not adopt agency’s view |
This table highlights the significantly different judicial postures. Chevron represented deference rooted in agency expertise and congressional delegation, while Skidmore preserved judicial independence, allowing courts to be guided but not bound by agency views.
The Loper Bright Revolution
The Case That Changed Everything
In June 2024, the Supreme Court delivered a landmark decision in Loper Bright Enterprises v. Raimondo that fundamentally altered administrative law by expressly overruling Chevron deference.
The case involved commercial herring fishermen challenging a regulation by the National Marine Fisheries Service. The rule required fishing boat operators to pay salaries of third-party, at-sea monitors who collect fisheries management data.
The fishermen argued the Magnuson-Stevens Act didn’t clearly authorize the agency to impose these monitoring costs. Lower courts, applying Chevron deference, had upheld the rule, finding the statute ambiguous and the agency’s interpretation reasonable.
The Supreme Court took the case specifically to reconsider Chevron’s continued viability.
Why the Court Abandoned Chevron
In a 6-3 decision, Chief Justice John Roberts wrote for the majority, articulating several key reasons for overruling 40 years of precedent:
Incompatibility with the Administrative Procedure Act: The Court found Chevron directly conflicted with Section 706 of the APA, which requires reviewing courts to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” The APA mandates independent judicial judgment, not deference to agency interpretations of ambiguous statutes.
Abdication of Judicial Duty: The Court emphasized the judiciary’s fundamental constitutional role. Citing Marbury v. Madison, the majority asserted that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Chevron improperly compelled judges to surrender this core responsibility.
Statutory Ambiguity Doesn’t Equal Delegation: The Court rejected Chevron’s key premise that statutory silence or ambiguity automatically signifies congressional delegation of interpretive authority to agencies. Ambiguity can arise from legislative compromise, oversight, or language limitations—not necessarily conscious decisions to empower agencies.
Chevron Proved Unworkable: The Court pointed to practical difficulties in applying Chevron. Defining “ambiguity” at Step One or “reasonableness” at Step Two had proven elusive and led to inconsistent applications. The doctrine had become “replete with practical difficulties.”
Stare Decisis Didn’t Require Retention: While acknowledging the principle of following precedent, the Court concluded this didn’t require upholding Chevron. The majority deemed the doctrine “fundamentally misguided,” and its departure from APA requirements justified overruling it.
The decision represents a significant reassertion of judicial authority in interpreting federal statutes. By dismantling mandatory deference to agency interpretations, the Court shifted interpretive power from the executive branch back to the judiciary.
This also sends a message to Congress: if lawmakers want agencies to have specific authority or implement particular policies, they must legislate with greater clarity and precision. Agencies can no longer rely on vague statutory language as broad license to interpret and fill gaps.
The New Legal Landscape
Skidmore Takes Center Stage
With Chevron’s demise, Skidmore principles have gained renewed importance. The Supreme Court in Loper Bright explicitly stated that while courts must exercise “independent judgment” in deciding legal questions, they may still find agency interpretations informative and accord them “respect” or “weight” based on persuasive power.
This means Skidmore factors—thoroughness of consideration, validity of reasoning, consistency, and overall persuasiveness—will likely become the primary framework for evaluating agency statutory interpretations.
Agencies still have opportunities to present interpretations to courts, but these will be assessed for intrinsic merit rather than accepted simply because they’re “reasonable” and the statute is “ambiguous.” Well-reasoned, expertly supported, consistently applied agency views may still carry significant weight, but ultimate interpretive authority rests with courts.
The Major Questions Doctrine
Alongside changes to deference doctrines, the “Major Questions Doctrine” imposes another important limit on agency power. This doctrine requires agencies to have clear, explicit, unambiguous congressional authorization before issuing regulations on matters of “vast economic and political significance.”
The Supreme Court prominently applied this doctrine in West Virginia v. EPA (2022), striking down an EPA rule on carbon emissions from power plants. The Court found the agency lacked clear congressional mandate for such a transformative regulatory scheme.
The Major Questions Doctrine operates as a distinct check on agency power, focusing on the scope of authority Congress delegates for issues of major national importance. It complements the post-Loper Bright landscape by reinforcing demands for clear legislative directives on significant agency actions.
What “Independent Judgment” Means
A critical aspect of the new landscape is the practical meaning of “independent judgment” by courts. Loper Bright mandates that courts exercise such judgment when interpreting statutes, even ambiguous ones, rather than deferring to agency views.
But the decision also explicitly allows courts to give “weight” or “respect” to agency interpretations under Skidmore, considering factors like expertise, thoroughness, and consistency. How these directives—to judge independently yet still consider agency views persuasively—will be reconciled isn’t entirely clear.
Skidmore is known for its flexibility as a multi-factor test that can lead to varying degrees of deference. There’s historically been debate over whether Skidmore truly constitutes “deference” or simply structured consideration of expert input.
How different federal courts balance “independent judgment” with agency interpretations’ “power to persuade” will be a significant area of legal development. This could lead to variations across circuits until further Supreme Court clarification emerges.
Real-World Impact
Increased Uncertainty and Legal Challenges
One immediate consequence of abandoning Chevron is likely increased regulatory uncertainty. Under Chevron, reasonable agency interpretations of ambiguous statutes were generally upheld, providing predictability. Now, with courts exercising more independent judgment, challenge outcomes may be harder to foresee.
This uncertainty can make it difficult for businesses to plan and invest, as rules governing their operations may be subject to court reinterpretation.
The shift is also expected to increase legal challenges against agency actions. Businesses, individuals, and interest groups who believe agencies have overstepped statutory authority may feel more emboldened to take cases to court, anticipating less deferential review.
This could result in more litigation, creating court backlogs and requiring agencies to spend more resources defending rules. Some observers worry this could lead to inconsistent rulings across jurisdictions, further contributing to regulatory instability.
Sector-Specific Effects
The effects will likely be felt across numerous heavily regulated sectors:
Environmental Protection: The EPA has historically relied on interpreting broad statutory mandates for air and water pollution control. New and existing environmental regulations could face more stringent judicial review, potentially affecting climate change rules, emissions standards, and water quality regulations.
Healthcare: Agencies like the Department of Health and Human Services and FDA make critical interpretations affecting Medicare and Medicaid reimbursement, prescription drug approvals, medical device regulations, and Affordable Care Act implementation. Without Chevron, decisions in these areas may be more vulnerable to challenges, potentially impacting patient access, healthcare costs, and new medical technology introduction.
Worker Safety: The Occupational Safety and Health Administration sets worker protection standards. Challenges to OSHA’s interpretations could impact workplace safety regulations.
Financial Services: The SEC and Consumer Financial Protection Bureau issue rules governing financial markets and consumer protection. The new review standard could affect banking, investment, and consumer lending regulations.
Telecommunications: The FCC makes rules impacting broadband, media ownership, and other communication services. Its interpretations will face more rigorous judicial scrutiny.
In each area, the shift away from Chevron means agency rulemaking will likely be more cautious, and existing rules may be re-examined through a less deferential lens.
Empowering Challenges and Congressional Response
The post-Chevron landscape may empower individuals, businesses, and organizations to more effectively challenge agency regulations they perceive as legally unsupported or exceeding congressionally granted authority. With courts no longer bound to defer to reasonable agency interpretations of ambiguous statutes, litigants have greater opportunity to persuade judges their interpretation is correct.
This development also emphasizes Congress’s renewed role. If lawmakers want specific policy outcomes or wish to grant agencies particular interpretive leeway, they must legislate with greater clarity and specificity. Vague statutory language will no longer be readily interpreted as implicit delegation of broad policymaking power.
The overruling triggers what might be termed a “litigation ripple effect.” This extends beyond challenges to new rules; it opens doors to renewed scrutiny of long-standing regulations previously upheld under Chevron.
The Supreme Court’s decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System (2024) amplifies this potential. The Court clarified that the six-year statute of limitations for challenging agency actions begins when the challenger is harmed, not when the rule is finalized. This means even decades-old regulations could face fresh legal challenges by newly affected parties.
Both regulated entities and public interest groups are likely to adopt more strategic litigation approaches. Regulated businesses might seek courts perceived as less deferential to agencies or re-evaluate challenging older rules that impose significant burdens. Agencies may become more circumspect in rulemaking, investing more heavily in building robust administrative records and justifications.
While proponents argue overturning Chevron will ultimately lead to clearer legislative intent and more consistent law application, the immediate future may be characterized by legal uncertainty. The shift from Chevron’s relatively defined process to Skidmore’s nuanced, factor-based analysis and “independent judicial judgment” is likely to generate increased unpredictability and potentially inconsistent outcomes across courts.
The dissenting justices in Loper Bright warned of precisely this uncertainty, predicting potential court backlogs as judges grapple with interpreting complex statutes without Chevron’s guiding framework. While the long-term goal may be greater clarity through more precise legislation, the path there might navigate through significant legal and regulatory ambiguity as new judicial review standards are tested and refined.
Staying Informed in the New Era
Understanding administrative law and agency rulemaking remains vital for effective civic engagement. In an era where judicial review is evolving, public awareness and participation become even more crucial for ensuring government accountability.
Several official resources help citizens track agency activities and participate in the process:
The Federal Register is the official daily publication for federal agency rules, proposed rules, and notices, plus executive orders and presidential documents. It’s the primary source for finding regulations being considered or finalized.
Regulations.gov serves as a centralized portal where the public can find, review, and submit comments on federal agency regulations open for public comment.
Reginfo.gov, managed by the Office of Management and Budget, provides information about federal rulemaking processes, including the Unified Agenda of Federal Regulatory and Deregulatory Actions showing regulations agencies are planning or developing.
Most federal agencies maintain websites with sections dedicated to their specific laws, regulations, and rulemaking activities.
In the current legal environment with less predictable agency deference and stronger emphasis on direct judicial interpretation, the importance of public vigilance and accessible information cannot be overstated. When courts exercise more independent judgment and agency interpretations no longer enjoy Chevron’s protective shield, the regulatory landscape becomes more fluid and subject to frequent challenges.
For democratic accountability to thrive, citizens need to be well-informed about proposed agency actions, their legal bases, and avenues for challenge or support. While official resources are indispensable, their technical nature can be barriers for many. Platforms that translate complex legal and regulatory developments into plain language become even more critical for explaining the “new rules of the game” for agency accountability.
An informed public is better equipped to participate in rulemaking, advocate for interests, and ultimately hold government agencies and courts accountable for their decisions. The end of Chevron deference marks not just a legal shift, but a moment requiring greater civic engagement to ensure this new balance of power serves the public interest.
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