SCOTUS overturns ‘Chevron’ precedent as state’s top court ponders deference

Supreme Court of the United States

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  • The US Supreme Court overturned Friday the 40-year-old precedent in a case called Chevron. The precedent had forced federal courts to defer to government agencies' interpretations of ambiguous laws during legal disputes.
  • The decision split the high court, 6-3. Chief Justice John Roberts wrote the majority opinion explaining that the Chevron precedent "cannot be squared" with requirements of the federal Administrative Procedure Act.
  • The decision overturning so-called "Chevron deference" arrived as North Carolina's Supreme Court prepared to address its own deference case.

The US Supreme Court overturned Friday a controversial 40-year-old precedent that called for courts to defer to government agencies’ interpretations when considering ambiguous laws. The end of so-called “Chevron deference” arrives as North Carolina’s top court prepares to consider its own deference case.

Chief Justice John Roberts wrote the majority decision in the federal high court’s 6-3 and 6-2 decisions in two cases challenging the 1984 precedent in Chevron v. Natural Resources Defense Council.

“The deference that Chevron requires of courts reviewing agency action cannot be squared with the [Administrative Procedure Act],” Roberts wrote. Approved in 1946, the APA prescribes procedures for government agencies’ action and “delineates the basic contours of judicial review of such action,” the chief justice explained.

“Neither Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA,” he added. “The ‘law of deference’ that this Court has built on the foundation laid in Chevron has instead been ‘[h]eedless of the original design’ of the APA.”

“Chevron defies the command of the APA that ‘the reviewing court’ — not the agency whose action it reviews — is to ‘decide all relevant questions of law’ and ‘interpret … statutory provisions.’ It requires a court to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment as required by the APA,” the chief justice wrote. “And although exercising independent judgment is consistent with the ‘respect’ historically given to Executive Branch interpretations, Chevron insists on much more.”

“It demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time,” the chief justice continued. “Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else — unless the prior court happened to also say that the statute is ‘unambiguous.’ That regime is the antithesis of the time honored approach the APA prescribes.”

“In fretting over the prospect of ‘allow[ing]’ a judicial interpretation of a statute ‘to override an agency’s’ in a dispute before a court, Chevron turns the statutory scheme for judicial review of agency action upside down,” Roberts wrote.

In dissent, Justice Elena Kagan described Chevron as a “cornerstone of administrative law.”

“And the rule is right,” Kagan wrote. “This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not — in fact cannot — write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court.”

The John Locke Foundation, which oversees Carolina Journal, responded to the decisions in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce.

“Today’s Loper Bright decision strips unelected bureaucrats’ power to rewrite statutes and returns questions of constitutional and statutory interpretation to the judiciary, as the Framers of the Constitution intended,” said Jessica Thompson, Locke’s general counsel and director of governnent affairs. “Silence or uncertainty about the meaning of a law is no longer a blank check for federal agencies to create or shape the law for their own aims. Instead, this decision makes clear that legislative power resides in Congress, not unaccountable agencies. This is a win for all Americans, democracy, and the Constitution.”

“It’s a surprisingly good opinion that will help rein in an out-of-control regulatory state, at least at the national level,” added Jon Guze, Locke’s senior fellow in legal studies. “I expect it will ripple through the state courts as well, including here in North Carolina. The North Carolina Supreme Court is currently reviewing two important cases involving judicial deference. I hope our Supreme Court will take Justice Roberts’ analysis into consideration when it decides those cases.”

The nation’s highest court issued its decision about deference as North Carolina’s Supreme Court prepares to a tackle a similar issue.

The John Locke Foundation, NC Chamber, and NC Farm Bureau all hope the state’s high court will choose to reform the way state courts address the legal issue of “administrative deference.”

The groups filed separate friend-of-the-court briefs May 29 in a case challenging the dismissal of Winston-Salem State University professor Alvin Mitchell.

Administrative deference refers to courts’ willingness to defer to a government agency’s interpretation of a law or its own rules and regulations when the agency faces a legal challenge.

“A movement to reform administrative deference doctrine is currently sweeping the country,” wrote Jon Guze, Locke’s senior fellow in legal studies. “Because the present case provides this court with an opportunity to join and possibly lead that movement, Locke has an interest in ensuring the court is fully informed regarding the movement’s historical background and recent development.”

“Locke has always opposed all forms of judicial deference, not just because they are unfair and unconstitutional, but also because they undermine the judiciary’s role in upholding the rule of law and create perverse incentives for legislatures and executive officers and agencies,” Guze added.

Guze’s brief focused on the rise of deference during the 20th century, when progressive scholars, jurists and politicians pushed for a “unified regulatory state in which all governmental power was assigned to wise and beneficent technocrats in the executive branch.”

“The result of this ‘administrative deference’ was that all three functions of government became concentrated in the executive branch,” Guze wrote. “That clearly violates the separation of powers guaranteed by the relevant constitutional provisions. Ironically, it also violates the ancient principle … It is unfair for someone to be a judge in his own affairs.”

“That principle applies to private actors of course, but … it applies to governmental actors as well,” Guze added. “For centuries that right had been considered fundamental under Anglo-American law. However, a tribunal that defers to one of the parties to a dispute can hardly be said to be impartial.”

High courts in at least nine states have issued opinions “restricting or eliminating administrative deference,” Guze explained. The Ohio Supreme Court was the most recent court to take that step in 2022.

“The movement to restrict or eliminate all forms of administrative deference is clearly gaining momentum, and it is not too late for North Carolina to become a leader rather than a follower in that movement,” Guze wrote.

The NC Chamber and NC Farm Bureau’s legal groups filed a joint brief, also known as an amicus brief, in the Mitchell case.

“Amici’s members are heavily regulated by numerous state agencies, including, for example, the Department of Agriculture & Consumer Services, the Department of Environmental Quality, and the Department of Revenue. While in many instances Amici’s members work well with these and other agencies, there is always a risk that an agency will interpret a statute or a rule in a way that imposes unlawful regulatory burdens on their members,” the brief argued. “In the event that an Amici member challenges an agency action in court, the application of agency deference unfairly tilts the scales of justice in favor of the agency.”

The Alliance Defending Freedom filed a third friend-of-the-court brief in the case Wednesday. ADF focused on Mitchell’s free-speech rights.

“Dissenting faculty often suffer unlawful censorship and retaliation because of their protected expression,” ADF lawyers wrote. “University officials frequently rely on pretexts and legal arguments like those advanced here to justify this mistreatment. Thus, ADF and the thousands of students and faculty it represents have a particular interest in this case’s outcome. As this Court’s decision could adversely impact professors’ — and even students’ — free speech rights, ADF submits this brief to ensure that universities do not obtain carte blanche authority to punish faculty speech and to chill free speech where it should be most protected.”

Mitchell cited both free-speech and deference concerns in his own state Supreme Court brief earlier this month.

“This case presents two issues of fundamental importance to our constitutional system: freedom of speech and the separation of powers,” the fired professor’s lawyers wrote. “How this Court resolves these two issues will guide lower courts across the state for decades to come.”

“Freedom of speech is under attack in universities and schools across America,” Mitchell’s brief continued.

“With this case, this Court has an opportunity to stem the tide of these violations,” the brief argued. “By holding that Professor Mitchell’s termination violated his free speech rights, this Court can clarify that freedom of speech protections extend to North Carolina’s universities and schools including — if not especially — to viewpoints that administrators might find disfavored.”

Beyond the free-speech issues, Mitchell’s brief focused on concerns surrounding courts’ deference to government agencies’ interpretations of their own rules.

“This case also presents a gross violation of the separation of powers required by the North Carolina Constitution,” Mitchell’s lawyers wrote. “Below, Professor Mitchell argued that his termination violated the procedures contained in regulations promulgated by Winston-Salem State University and the UNC Board of Governors.”

“The University disagreed and provided a different proposed interpretation in its appellate briefing. There had been no official announcements or other publications providing clarity as to the meaning of the rules before that,” the brief continued. “Nevertheless, the Court of Appeals applied the federal Auer deference standard, rubber-stamping the interpretation of the regulations provided by the University’s brief.”

“Such blind deference represents an abrogation of the courts’ responsibility to exercise independent judicial judgment,” Mitchell’s lawyers argued. “Instead, it hands the executive branch the power of both judge and executioner. Our constitutional order does not permit this concentration of power. Under an independent interpretation of the regulations, Professor Mitchell’s termination violated the applicable procedures.”

The state Supreme Court issued a March 22 order indicating that it would take up Mitchell’s case. The order signaled that justices would address a single issue: “Under North Carolina law, when, if ever, should a court defer to an agency’s interpretation of the rules and regulations that the agency has promulgated?”

Attorneys representing Mitchell filed an appeal in May 2023. They asked the high court to reverse a 2-1 state Court of Appeals decision from April 2023. Appellate judges affirmed a 2021 trial court ruling upholding the university’s decision to fire Mitchell.

When seeking the appeal, Mitchell’s lawyers quoted Justice Richard Dietz’s questions about deference during an April 2023 oral argument.

“[W]hy do we defer to the agency’s interpretation?” Dietz asked. “What I’m asking is why, if the agency interpreted those [regulations], would we defer to that over just saying everyone impacted should be able to look at those conditions and decide what they mean, and no one person looking at them should be given any greater deference than anyone else?”

“I’m just wondering doctrinally why that agency deference exists in our case law at all in this context,” Dietz added.

Lawyers in that case “had no answer to these questions,” Mitchell’s lawyers argued.

“This petition lets the Court answer those questions directly. The judiciary’s deference to agency interpretations has significant public interest and involves legal principles of major significance to the jurisprudence of the State,” according to Mitchell’s lawyers.

Mitchell’s appeal contends that state deference law “is in disarray,” deference is “unlawful and unwise,” and the Appeals Court “applied extreme and unwarranted deference.” Mitchell’s lawyers argued that courts should not have deferred to UNC’s interpretation of the rules related to his dismissal.

The Appeals Court, in a 2-1 decision, affirmed the University of North Carolina System’s decision to fire Mitchell in 2019. Mitchell’s dismissal followed “three alleged acts of misconduct” between fall 2015 and fall 2017, according to the majority opinion authored by Judge Toby Hampson.

The university’s Board of Governors upheld Mitchell’s dismissal. A trial judge also supported the decision in July 2021. At the Appeals Court, Hampson and Judge Valerie Zachary voted to affirm the trial court’s ruling.

Judge Hunter Murphy agreed that Mitchell had received due process. He dissented from the majority opinion on the issue of a potential First Amendment violation linked to a letter Mitchell sent to a supervisor.

No date has been set for oral arguments at the state Supreme Court in Mitchell v. The University of NC Board of Governors.