D.C. Memo: Sides Debate if Chevron Doctrine Was Unconstitutional

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Chevron: Did the Supreme Court hold that Chevron deference was unconstitutional in Loper Bright Enterprises v. Raimondo? In his concurrence, Justice Clarence Thomas said Chevron deference was unconstitutional in two ways, suggesting he made that point to underscore that the majority opinion drafted by Chief Justice John Roberts had not gone that far. The question is an important one because Congress is not barred from passing a law if it disagrees with the Supreme Court's interpretation of a federal statute but is powerless to alter a constitutional holding short of initiating a constitution amendment. Attorneys Sean  Stokes and Casey Lide at Keller & Heckman wrote in a recent blog that "the Court held that Chevron deference runs counter to the Article III of the U.S. Constitution, which assigns to the federal judiciary the responsibility and power to adjudicate 'Cases' and 'Controversies.'" In an email to Policyband, Georgetown University Law Center Professor Josh Chafetz summarized the situation this way: "Loper Bright purported to be a statutory holding, not a constitutional one. In their concurrences, [Justices] Thomas and [Neil] Gorsuch said they thought Chevron was inconsistent with the constitution, but Roberts's majority opinion only holds that it is inconsistent with the Administrative Procedure Act. That said, if Congress were to pass a statutized Chevron, there may well be more votes for the Thomas/Gorsuch position." Last week, Sen. Elizabeth Warren (D-Mass.) introduced a bill to revive Chevron deference. In the House, Rep. Pramila Jayapal (D-Wash.) has introduced similar legislation.