Brookings Report Highlights an Uncertain Future for Chevron Deference

A Brookings report entitled, “Judicial Deference and the Future of Regulation” analyzes two recent Supreme Court decisions involving agency actions and examines potential implications for future regulation. The Chevron doctrine is an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The two cases the article highlights from the past term are American Hospital Association (AHA) v. Becerra and Becerra v. Empire Health Foundation which both challenged whether the Department of Health and Human Services overstepped when promulgating rules that altered how it calculates reimbursement rates for certain hospitals. In both opinions, the Court chose not to directly reference Chevron continuing a trend of limiting the scope of Chevron’s application beginning in 2000. The authors of the report state that in the past “agencies presumably saw Chevron deference as an important tool to use in writing regulations” with a study noting a 94%-win rate (from 2003-2013) if the court made it to the second step of the framework. However, in recent years the report notes “agencies could be shying away from explicitly citing Chevron,” and that there are “major actions by this administration [Biden] that do not cite the case at all.” In its recent proposal on mandated climate-related disclosures, the SEC did not mention the case in its release. The authors note that the SEC “presumably sees reliance on the case as a signal of vulnerability.”