The Unlamented Death of Chevron
Justice Thomas writes and IllAdvised Opinion
“… must finally be overruled.” The key word being finally!
Chevron deference, the idea that courts should defer to federal agencies when determining what a given law means, has been one of the most destructive judicial concepts in modern history. Today it was finally overruled.
Concurrence
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 22–451 and 22–1219
_________________
LOPER BRIGHT ENTERPRISES, et al., PETITIONERS
22–451 v.
GINA RAIMONDO, SECRETARY OF COMMERCE, et al.
on writ of certiorari to the united states court of appeals for the district of columbia circuit
RELENTLESS, INC., et al., PETITIONERS
22–1219 v.
DEPARTMENT OF COMMERCE, et al.
on writ of certiorari to the united states court of appeals for the first circuit
[June 28, 2024]
Justice Thomas, concurring.
I join the Court’s opinion in full because it correctly concludes that Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), must finally be overruled. Under Chevron, a judge was required to adopt an agency’s interpretation of an ambiguous statute, so long as the agency had a “permissible construction of the statute.” See id., at 843. As the Court explains, that deference does not comport with the Administrative Procedure Act, which requires judges to decide “all relevant questions of law” and “interpret constitutional and statutory provisions” when reviewing an agency action. 5 U. S. C. §706; see also ante, at 18–23; Baldwin v. United States, 589 U. S. ___, ___–___ (2020) (Thomas, J., dissenting from denial of certiorari) (slip op., at 4–5).
I write separately to underscore a more fundamental problem: Chevron deference also violates our Constitution’s separation of powers, as I have previously explained at length. See Baldwin, 589 U. S., at ___–___ (dissenting opinion) (slip op., at 2–4); Michigan v. EPA, 576 U. S. 743, 761–763 (2015) (concurring opinion); see also Perez v. Mortgage Bankers Assn., 575 U. S. 92, 115–118 (2015) (opinion concurring in judgment). And, I agree with Justice Gorsuch that we should not overlook Chevron’s constitutional defects in overruling it.1* Post, at 15–20 (concurring opinion). To provide “practical and real protections for individual liberty,” the Framers drafted a Constitution that divides the legislative, executive, and judicial powers between three branches of Government. Perez, 575 U. S., at 118 (opinion of Thomas, J.). Chevron deference compromises this separation of powers in two ways. It curbs the judicial power afforded to courts, and simultaneously expands agencies’ executive power beyond constitutional limits.
Chevron compels judges to abdicate their Article III “judicial Power.” §1. “[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.” Perez, 575 U. S., at 119 (opinion of Thomas, J.); accord, post, at 17–18 (opinion of Gorsuch, J.). The Framers understood that “legal texts . . . often contain ambiguities,” and that the judicial power included “the power to resolve these ambiguities over time.” Perez, 575 U. S., at 119 (opinion of Thomas, J.); accord, ante, at 7–9. But, under Chevron, a judge must accept an agency’s interpretation of an ambiguous law, even if he thinks another interpretation is correct. Ante, at 19. Chevron deference thus prevents judges from exercising their independent judgment to resolve ambiguities. Baldwin, 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 3); see also Michigan, 576 U. S., at 761 (opinion of Thomas, J.); see also Perez, 575 U. S., at 123 (opinion of Thomas, J.). By tying a judge’s hands, Chevron prevents the Judiciary from serving as a constitutional check on the Executive. It allows “the Executive . . . to dictate the outcome of cases through erroneous interpretations.” Baldwin, 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 4); Michigan, 576 U. S., at 763, n. 1 (opinion of Thomas, J.); see also Perez, 575 U. S., at 124 (opinion of Thomas, J.). Because the judicial power requires judges to exercise their independent judgment, the deference that Chevron requires contravenes Article III’s mandate.
Chevron deference also permits the Executive Branch to exercise powers not given to it. “When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.” Department of Transportation v. Association of American Railroads, 575 U. S. 43, 68 (2015) (Thomas, J., concurring in judgment). Because the Constitution gives the Executive Branch only “[t]he executive Power,” executive agencies may constitutionally exercise only that power. Art. II, §1, cl. 1. But, Chevron gives agencies license to exercise judicial power. By allowing agencies to definitively interpret laws so long as they are ambiguous, Chevron “transfer[s]” the Judiciary’s “interpretive judgment to the agency.” Perez, 575 U. S., at 124 (opinion of Thomas, J.); see also Baldwin, 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 4); Michigan, 576 U. S., at 761–762 (opinion of Thomas, J.); post, at 18 (Gorsuch, J., concurring).
Chevron deference “cannot be salvaged” by recasting it as deference to an agency’s “formulation of policy.” Baldwin, 589 U. S., at ___ (opinion of Thomas, J.) (internal quotation marks omitted) (slip op., at 3). If that were true, Chevron would mean that “agencies are unconstitutionally exercising ‘legislative Powers’ vested in Congress.” Baldwin, 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 3) (quoting Art. I, §1). By “giv[ing] the force of law to agency pronouncements on matters of private conduct as to which Congress did not actually have an intent,” Chevron “permit[s] a body other than Congress to perform a function that requires an exercise of legislative power.” Michigan, 576 U. S., at 762 (opinion of Thomas, J.) (internal quotation marks omitted). No matter the gloss put on it, Chevron expands agencies’ power beyond the bounds of Article II by permitting them to exercise powers reserved to another branch of Government.
Chevron deference was “not a harmless transfer of power.” Baldwin, 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 3). “The Constitution carefully imposes structural constraints on all three branches, and the exercise of power free of those accompanying restraints subverts the design of the Constitution’s ratifiers.” Ibid. In particular, the Founders envisioned that “the courts [would] check the Executive by applying the correct interpretation of the law.” Id., at ___ (slip op., at 4). Chevron was thus a fundamental disruption of our separation of powers. It improperly strips courts of judicial power by simultaneously increasing the power of executive agencies. By overruling Chevron, we restore this aspect of our separation of powers. To safeguard individual liberty, “[s]tructure is everything.” A. Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 Notre Dame L. Rev. 1417, 1418 (2008). Although the Court finally ends our 40-year misadventure with Chevron deference, its more profound problems should not be overlooked. Regardless of what a statute says, the type of deference required by Chevron violates the Constitution.
Notes
1 *There is much to be commended in Justice Gorsuch’s careful consideration from first principles of the weight we should afford to our precedent. I agree with the lion’s share of his concurrence. See generally Gamble v. United States, 587 U. S. 678, 710 (2019) (Thomas, J., concurring).
Good riddance to it.