The End of Chevron Deference

Talk about some kettle of legal fish. In a pair of cases involving a federal conservation law and Atlantic herring, the U.S. Supreme Court issued a decision on Friday that upends decades of deference courts have granted federal agencies in interpreting laws administered by them when they issue regulations or carry out other formal agency actions like administrative adjudications. The decision, which has immense implications for all aspects of national life, is deeply significant for higher education, with colleges and universities subject to a wide range of federal regulations.

The court, in a 6-3 decision, struck down what is known as Chevron deference, named after the 1984 case wherein the Supreme Court declared that courts should accept reasonable agency interpretations of federal law when language in a statute is ambiguous or fails to address a specific issue. As Justice Neil Gorsuch observed in an opinion concurring in the ruling, the majority decision places a “tombstone” on the Chevron case.

Under Chevron deference, if language in a federal law is not ambiguous, then a court follows the plain language of the statute. However, and as is often true, if a law contains uncertain wording or doesn’t address a specific or technical issue, then for the past 40 years federal courts have given executive agencies wide latitude to interpret the law in question. Specifically, Chevron deference applied when agencies followed formal procedures to issue regulations or make adjudications that interpreted federal statutes. More informal actions from agencies in interpreting federal laws, such as in the form of Dear Colleague letters, could be important to courts in deciding if an agency had acted correctly but did not receive Chevron-level deference.

In overturning the Chevron case and Chevron deference, the Supreme Court ruled that the decision was in conflict with the Administrative Procedure Act, a law passed in 1946 that governs the processes and standards for federal agencies in issuing regulations and carrying out other administrative actions. Justice Clarence Thomas wrote a separate opinion joining the majority ruling to further argue that the constitutional principles of separation of powers—with him emphasizing courts as the appropriate branch of the federal government to interpret law—meant that Chevron was improperly decided.

One of the justifications for Chevron deference is that officials in federal agencies often possess special technical expertise not had by courts. This rationale is one of the key reasons noted by Justice Elena Kagan in her dissenting opinion. Describing the majority’s ruling as an act of “judicial hubris,” she also stated that as part of the executive branch of government, federal agencies are ultimately subject to political accountability through elections that federal courts are not. Kagan argued that the justices in the majority had now made the Supreme Court the nation’s “administrative czar.” She also criticized the majority for “making a laughing-stock” of a legal concept known as stare decisis—the principle that courts should be careful to be guided by the decisions from prior cases in making new rulings.

A number of business groups and conservative interests have backed the overturning of Chevron deference. An argument against providing such deference to federal agencies is that courts had abdicated their constitutional role to interpret laws and have been too quick to approve actions by federal agencies. According to critics, Chevron deference has resulted in too much power for federal agencies and unelected officials by letting them both “enforce and interpret” federal laws.

The demise of Chevron deference means that the Supreme Court and lower federal courts will now be able to exert a much stronger role in determining how federal statutes are interpreted and if agencies have exceeded their statutory authority.

A major concern from those on the political left is that conservative judges will become activist and seek to substitute their policy views over those of agency officials. For years, Republicans and conversative groups have prioritized the appointment of conservative federal judges and justices. These efforts mean that the federal judiciary, including the Supreme Court, has taken a more conservative turn. In the case of the Supreme Court, for instance, it has been reported as being the most conservative iteration of the court in almost a century. The decision to overturn Roe v. Wade is one of the most notable examples of how a conservative majority of the Supreme Court has flexed its judicial muscles and been willing to overturn long-standing precedent. Or, in higher education, the invalidation of race-conscious admissions in higher education a year ago was a product of the current conservative majority on the Supreme Court.

However, the decision has more far-reaching consequences than just for the nation’s top court. The Supreme Court accepts a small number of cases for review each year, only agreeing to hear about 80 cases each term. Since most cases never reach the Supreme Court, the new ruling means that lower federal courts across the country now have substantially more authority to interpret federal statutes and decide the limits of agency authority.

When it comes to reviewing actions of federal agencies, the decision enhances the power of one federal appeals court in particular. The U.S. Court of Appeals for the District of Columbia Circuit, commonly called the second-most powerful court in the nation, often hears cases involving federal agencies and has been designated the first level of appeals review for certain laws no matter the jurisdiction in which a case began. The important role of this court in reviewing agency actions may help to provide some consistency in the interpretation of federal law and agency authority after the end of Chevron deference. However, a number of cases involving federal agencies and regulations are heard by other federal appeals and district courts from around the country. With the Supreme Court nixing Chevron deference, federal courts across the nation now have substantially increased authority to evaluate regulations and actions by federal agencies.

What does the ruling mean for higher education? Colleges and universities are subject to a dizzying array of federal rules and regulations. A new book from Harvard University Press deals with the growing importance of lawyers in higher education, with regulatory obligations one of the main forces driving the increased reliance on lawyers in campus decision- and policymaking.

Just as in other sectors, the ending of Chevron deference means that higher education now faces a regulatory world where federal courts suddenly have much more authority to determine what federal agencies are allowed to do under federal statutes. As heavily regulated entities, colleges and universities, like other organizations, may now have an easier time challenging federal regulations they find overly burdensome or unfair. Yet institutions may also encounter a more unstable regulatory environment that may make it more difficult to engage in long-term planning.

It is projected that the decision will make it harder for federal agencies to issue broader regulations, which could affect their ability to effect policy changes in a wide swath of areas, including ones that affect higher education. The decision could also have important implications for the rights of students and employees, with critics of the decision worrying that federal agencies will be hampered in enacting rules to protect individuals from harms that include discrimination.

While the majority stated in its opinion that its ruling was limited to future reviews of agency decisions, and does not “call into question” past cases decided based on the Chevron standard, it is not yet clear how this will play out for higher education. New Title IX regulations set to go into effect in August have already been subject to legal challenges. A new rule from the Department of Labor that becomes fully effective Jan. 1 expands the pool of employees (including college and university employees) who are eligible for overtime pay. These are just two examples of the kinds of federal regulations important for higher education that could be affected by the ruling.

One justification for ending Chevron deference is that it will push Congress to become more active in crafting legislation and in specifying what federal agencies can do under particular laws. However, increasing polarization in Congress may make it harder to pass legislation. Just take the Higher Education Act, the signature federal law for higher education policy first enacted in 1965. The law is supposed to be reauthorized every five years, but Congress hasn’t been able to pass a full reauthorization since 2008.

With its decision to end Chevron deference, the Supreme Court opened the door to a new regulatory world, including for colleges and universities. Future legal decisions, responses by federal agencies to those decisions and actions (or inaction) by Congress will determine the impact of Friday’s Supreme Court ruling on higher education.