Fishing for Clarity: How Much Power Do Federal Agencies Have?

Issue: Whether the Court should overrule Chevron v. Natural Resources Defense Council, or at least clarify whether statutory silence concerning administrative agency powers expressly but narrowly granted elsewhere in the statute should be construed as a lack of Congressional authority, or instead, as an ambiguity warranting further deferential consideration of the agency’s interpretation of its statutory powers.

Congress frequently delegates regulatory functions to administrative agencies, but often does not provide express instructions on how to carry out those functions. Agencies must fill the gap with their own interpretation of their statutory authority. In 1984, the United States Supreme Court in Chevron v. National Resources Defense Council provided critical guidance on whether and how much federal courts should defer to agency interpretations of statutes. 467 U.S. 837 (1984). Chevron sets forth a two-step analysis, first asking whether Congress has already spoken to the issue at hand, and if not, asking if the agency’s interpretation is a reasonable construction of the statute. See id. at 837–38. If the agency’s interpretation is reasonable, courts defer to the agency’s interpretation.

Courts have long grappled with how to apply the Chevron doctrine, in recent years chipping away at the degree of deference given to agency interpretations. See, e.g., United States v. Mead, 533 U.S. 218 (2001) (declining to apply Chevron analysis, in part, because the customs tariff classifications at issue were not “rules carrying the force of law.”) The “major questions doctrine” has also developed as another limitation to Chevron. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–160 (2000) (holding the traditional two-step analysis may not apply where the issue at hand is of “economic and political significance.”); see also Biden v. Nebraska, 143 S. Ct. 2355, 2368, 2372–73 (2023) (invalidating student loan forgiveness program).

Now, the Supreme Court will take up this issue in the context of an agency’s interpretation of the Magnuson-Stevens Fishery Conservation and Management Act (“the MSA”). The MSA regulates marine fisheries in federal waters. The law authorizes the National Marine Fisheries Service (“the Service”) to create and enforce “fishery management plans” and do what is “necessary and appropriate for the conservation and management of the fishery.” See Loper Bright Enters., Inc. v. Raimondo, 45 F.4th 359, 363 (D.C. Cir. 2022). In 2020, the Service published a rule requiring industry-funded “at-sea monitoring programs,” which entail various methods of data collection used for scientific, managerial, regulatory, and economic purposes. Id. at 363. A group of commercial fishing companies filed suit, alleging that Congress’s silence on the specific issue of industry funding indicated a clear absence of statutory authority to impose this cost and, therefore, no “ambiguity” that would require the Court to examine whether the Service’s interpretation of its authority was reasonable (Chevron Step Two). Id. at 364.

The United States District Court for the District of Columbia found in the government’s favor, determining that the rule was within the agency’s scope of authority. Loper Bright Enters., Inc. v. Raimondo, 544 F. Supp. 3d 82, 107 (D.D.C. 2021). On appeal, the D.C. Circuit affirmed, using Chevron’s two-step analysis. Id. at 363-65. The court, noting Chevron’s statement that deference is appropriate “if the statute is silent or ambiguous with respect to the specific issue,” determined that there was sufficient contextual support for the conclusion that Congressional silence did not signal a lack of authority for the rule. However, the court also concluded that there was sufficient ambiguity to proceed to Chevron Step Two, where the court found that the service’s interpretation of the MSA was reasonable. Id. at 368–69. The dissent argued that, while Chevron analysis was appropriate here, Congressional silence on an issue generally should not be interpreted as ambiguity or a grant of authority to the agency. Id. at 369, 374.

The Supreme Court granted plaintiff-appellant’s request for certiorari on the question of whether the Chevron framework should be upheld and, if it should, whether silence creates sufficient ambiguity to meet Step One of the analysis, particularly when Congress is silent on a “controversial power” at issue. Petitioners argue that the Service’s action was “controversial” because it “involves the Federal Budgeting and appropriations process” and is costly.

WHAT’S AT STAKE

The Chevron doctrine applies to a wide array of regulatory initiatives, including those impacting older adults like employment discrimination, Medicare, and regulation of nursing facilities. Often, courts have applied Chevron in a manner enabling agencies to more expansively fulfill their mission to protect the rights of older adults. For example, Chevron deference affirmed the U.S. Department of Health and Human Services’ rulemaking efforts to protect the rights of long-term care residents to be free from pre-dispute binding arbitration as a condition of admission. Northport Health Services v. Dep’t of Health and Hum. Servs., 14 F.4th 856 (8th Cir. 2021). On the other hand, courts have also used Chevron to validate agency action that favors industry or employers. One example is the Third Circuit’s use of Chevron analysis to find that the Equal Employment Opportunity Commission’s regulation, which permitted employers to give retirees over 65 inferior benefits, was within EEOC’s statutory authority. See American Ass’n of Retired Persons v. E.E.O.C., 489 F.3d 558, 562 (3d Cir. 2007). This rule has been estimated to impact millions of workers. Regardless of the outcome of Loper, whether Chevron is strengthened, weakened, or done away with entirely, this decision will affect the lives of older adults.

Allie Horwitz

AHorwitz@aarp.org

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