ARGUING THAT THE UNITED STATES SUPREME COURT SHOULD CLARIFY THAT ITS (IN)FAMOUS DECISION IN CHEVRON U.S.A., INC. v. NATURAL RESOURCES DEFENSE COUNCIL, 467 U.S. 837 (1984), REQUIRES A FEDERAL COURT, AS ALWAYS, TO APPLY TRADITIONAL TOOLS OF STATUTORY CONSTRUCTION TO DECIDE INDEPENDENTLY WHETHER AN ADMINISTRATIVE AGENCY HAS EXCEEDED ITS STATUTORILY DELEGATED POWERS.
NELF is interested in this case because a lower federal court has misapplied Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984), to uphold a federal regulation that burdens the Atlantic herring fishery, when the relevant statute does not authorize any such agency action. NELF is committed to upholding the Constitution’s separation of powers, reinforced by § 706 of the Administrative Procedure Act, under which an independent federal judiciary must say what the law is and decide whether an administrative agency has exceeded its delegated powers.
NELF is also committed to the core principle of stare decisis, which in this case means applying the Court’s traditional tools of statutory construction to ascertain a statute’s meaning. To the extent that Chevron contains language suggesting an interpretive rule to the contrary, the Court should consider disavowing any such meaning attributable to that language or, if necessary, disavowing any freestanding validity to that language altogether.
In its brief, NELF argues that the Court should consider clarifying “step one” of its two-step test, announced in Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984), for determining the validity of a federal agency’s regulation. In part, Chevron restates “well-settled principles” regarding the federal judiciary’s role to “employ traditional tools of statutory construction,” in order to decide independently whether Congress has authorized an agency regulation.
However, Chevron also contains misleading and unnecessary language suggesting, to the contrary, that a court should subordinate the traditional tools of statutory construction to the untraditional interpretive rule that an agency has implied plenary powers, unless and until Congress “has directly spoken to the precise question at issue,” by literally withholding the disputed regulatory power. Chevron also contains misleading language suggesting that every purported statutory “silence” creates a genuine ambiguity for the agency to resolve.
The lower court certainly read Chevron that way when it upheld the disputed regulation, despite all clear textual and contextual cues to the contrary. Under its hyperliteral reading of Chevron, the lower court concluded that Congress “silently” authorized the disputed agency regulation because the statute failed to literally prohibit that regulation.
To dispel this fundamental confusion, and to prevent any more erroneous decisions like this one, the Court should consider, at minimum, disavowing the lower court’s misreading of Chevron as creating a hyperliteral interpretive rule that would place a virtually impossible, and unheard-of, drafting burden on Congress to take exhaustive steps to withhold an agency’s regulatory powers, in every administrative statute. Alternatively, the Court could disavow any freestanding validity to Chevron’s misleading language itself. The Court has undertaken similar corrective measures in order to clarify its doctrinal tests in other areas of the law. Either way, the Court would make clear, once and for all, that, under Chevron step one, lower courts must, as always, interpret a statute with a fresh and independent eye, free of any rogue pro-agency presumption, by giving effect to the text’s ordinary meaning, and by drawing reasonable inferences from statutory context, in order to determine a regulation’s validity.
Undoubtedly, the Chevron Court did not intend to suggest the upside-down presumption that an agency has the implied power to regulate an issue whenever Congress has not literally withheld that regulatory power. After all, the Court was merely restating well-settled principles requiring a court to apply traditional tools of statutory construction. Nor has the Court recognized any such rogue pro-agency presumption when it discusses or engages in a Chevron step-one analysis itself. However, Chevron’s misleading language does invite the misinterpretation that the lower court applied here.
Such an interpretation of Chevron is insupportable. An agency is a creature of Congress and can only exercise those powers that Congress has actually given it. Moreover, both Congress and the citizenry need to know the legal effect of the language that Congress adopts, primarily by relying on the text’s ordinary meaning.
Perhaps most importantly, this misinterpretation of Chevron would eviscerate independent judicial review, as it did here. Because the lower court could not find statutory language that literally prohibited the regulation, the court concluded that its interpretive job was done, and that the Government could take over from there.
As a result, the court lost sight of the ordinary meaning of the statutory language at issue, which has nothing whatsoever to do with the Government’s regulation requiring certain commercial fishing vessels to fund its federal inspection regime. The court also repudiated traditional interpretive tools that draw reasonable inferences from statutory context to explain a purported congressional silence. According to the court, those tools were too weak and indirect to satisfy Chevron’s “directly speaking” requirement.
What’s more, the lower court missed the big picture. If allowed to stand, the Government’s (mis)interpretation of the statute would allow the Government to take the extreme step of requiring potentially all domestic commercial fishing vessels within its jurisdiction to fund its inspection regime. But if Congress had really wanted to delegate such a vast and unusual power to the Government, it would have said so, plainly and distinctly. Congress would not have concealed such a monolithic power in stray and obscure textual “clues,” scattered here and there in the statute, as the lower court essentially concluded.
The lower court apparently concluded that, under Chevron, every purported statutory silence creates a genuine ambiguity for the agency to resolve. This is wrong, because not every purported silence is ambiguous. As with any other issue of statutory construction, a court must interpret a purported silence to decide what it means, if it means anything at all. If the lower court had properly “emptied its legal toolkit,” unencumbered by its misunderstanding of Chevron, it would have seen that the purported silence carried only one plausible meaning. Congress was limiting the Government’s powers.
Sometimes, as in Chevron itself, a court engages with a statute and uncovers a genuine ambiguity. When the Chevron Court referred, imprecisely, to a “silent or ambiguous” statute, the Court was apparently generalizing from its own conclusion that it had found a statutory silence that was also ambiguous. But that was not the case here. Nonetheless, the lower court misinterpreted Chevron as requiring it to relinquish interpretive authority to the Government, as soon as it found a purported silence on the face of the statute.
Finally, NELF argues that the Supreme Court itself does not invoke Chevron’s misleading language, or the pro-agency presumption that it suggests, when the Court undertakes or discusses a step-one analysis of a statute. In those cases, the Court gives effect to the statute’s ordinary meaning, and it interprets the disputed language in its context, in order to resolve any purported ambiguity that would favor the agency. This case would allow the Court to make express what it has apparently already done in practice, thereby clarifying a lower court’s crucial gatekeeping role under Chevron step one, to decide whether an agency has exceeded its statutorily delegated powers.