As New Supreme Court Decision Looms on Chevron, Professors Discuss Extent of Administrative Agencies’ Power

On the latest “Common Law” episode, University of Virginia School of Law professors John F. Duffy and Daniel R. Ortiz discuss the future and validity of the U.S. Supreme Court decision in Chevron v. Natural Resources Defense Council, which has become a fertile political battleground for questions of executive agency power.

The 40-year-old Chevron ruling gave deference to administrative agencies, such as the Environmental Protection Agency or Commerce Department, in interpreting ambiguous statutes. That deference, now known as the Chevron doctrine, emerged from a case about how the EPA interpreted Clean Air Act amendments and what qualifies as a “stationary source” of pollution. The unanimous decision, supported at the time by many conservatives, including Justice Antonin Scalia, said it was “reasonable” for the agency to apply its interpretation to ambiguous language in a statute. Considered an unremarkable case at the time, Chevron became one of the court’s most-cited decisions and spurred more than a thousand law review articles.

In the decades since, textualists and conservatives have increasingly questioned giving that much power to agencies. They have argued that justices didn’t consider the role of the Administrative Procedure Act — which offers a framework for reviewing administrative agencies’ actions — nor the fact that some agencies have broader delegated powers than others.

In the current cases before the court, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, fishermen are challenging a new regulatory requirement that the herring industry must pay for federal monitors of their vessels. The high costs will drive smaller fishing operations out of business, they argue.

Duffy, an administrative law and intellectual property expert as well as a former law clerk to Justice Scalia, has been a leading intellectual challenger to the Chevron decision, notably with his article “Administrative Common Law in Judicial Review,” which won an American Bar Association award when it was published in 1998. He is the Samuel H. McCoy II Professor of Law.

Ortiz, who led the Law School’s highly successful Supreme Court Litigation Clinic for 17 years and has argued seven times before the court, teaches constitutional law, administrative law, electoral law, civil procedure and legal theory. He is the Michael J. and Jane R. Horvitz Distinguished Professor of Law.

The season, called “Free Exchange” and again hosted by Dean Risa Goluboff, features lively debates and discussions with two or more guests discussing cutting-edge legal topics. Episodes will post every two weeks throughout the spring.

On the show, the professors discuss why support for Chevron has flipped along political lines, the legal theory behind Chevron, the impact of the doctrine in lower courts, and whether Loper Bright and Relentless are the right cases for another evaluation of Chevron.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular podcast platforms. The show is produced by Emily Richardson-Lorente.

Past seasons have focused on “The Future of Law,” “When Law Changed the World,” “Law and Equity,” and “Co-Counsel” on seasons four and five.

You can follow the show on the website CommonLawPodcast.com or Twitter at @CommonLawUVA.