The Ghosts of Chevron Present and Future

In the October 2021 term, the Supreme Court decided six cases involving federal agency interpretations of statutes, at least five of which seemingly implicated the Chevron doctrine and several of which explicitly turned on applications of Chevron in the lower courts. But while the Chevron doctrine has dominated federal administrative law for nearly four decades, not a single majority opinion during the term even cited Chevron. Three of those cases formalized the so-called “major questions” doctrine, which functions essentially as an anti-Chevron doctrine by requiring clear congressional statements of authority to justify agency action on matters of great legal and policy significance. Where does the Chevron doctrine now stand? I take a close look at the six Supreme Court cases decided during the October 2021 term, including a close look at the arguments advanced by the parties (and by sometimes numerous amici) in those cases to provide a descriptive account of the Supreme Court’s current treatment of Chevron and the major questions doctrine. My principal goal is to not to lay out a Grand Theory of Chevron or deference doctrine in general but simply to provide a snapshot of current Supreme Court doctrine and a framework for further theoretical work, in whatever direction that theoretical work goes. I do, however, offer some speculations, for whatever they are worth, about the future of Chevron in the lower federal courts. The Supreme Court did not create the Chevron doctrine. The doctrine was created by lower courts and eventually taken over, and modified, by the Supreme Court. If lower courts originally created the doctrine (as I think they did) principally to make it easier to decide difficult administrative law cases, any reformations in doctrine that come from the Supreme Court may face a hostile reception unless the Court provides alternative mechanisms for decision that respond to the realities, not of a Court with a discretionary docket that decides a small handful of administrative law cases each year, but of a lower court system that must handle these cases by the thousands