Unrelenting Litigation? The Supreme Court’s Overruling of Chevron in Loper Bright Enterprises & Relentless, Inc. and What’s Next for Tribes

Deputy General Counsel for the San Manuel Band of Mission Indians

Tim Evans

Deputy General Counsel for the San Manuel Band of Mission Indians

The decision in  Loper Bright Enterprises v. Raimondo. is just as impactful as the U.S. Supreme Court overturning Roe v. Wade,  its ruling on Presidential immunity, or any of the other recent blockbuster decisions. On its face, Loper Bright appeared to be a rather benign case involving commercial fishing vessels and whether private parties had to pay for federal observers on those vessels for purposes of monitoring possible overfishing – a scenario with little relevance to most tribes. But what it actually did is much more foundational and potentially far-reaching for Indian Country.

Last Friday, June 28, 2024, the U.S. Supreme Court, with a 6-3 majority divided along ideological lines, released its opinion in the case Loper Bright Enterprises v. Raimondo, Secretary of Commerce (decided together with the case Relentless, Inc. v. Dept. of Commerce), 603 U.S. ____ (2024). The ruling eliminated a fundamental principle of administrative law known as "Chevron deference" that had been in place for 40 years. In sum, the ruling means that federal courts will no longer give deference to federal agency interpretations of ambiguities or gaps in federal law, but instead independently take on those legal interpretations themselves.  

This is important because now it will be up to federal courts primarily to address such ambiguities or gaps in the law in the administrative agency context. Going forward that could mean that federal agency actions (including actions affecting tribes) are more frequently overturned by the courts or more frequently decided in the first instance by courts rather than agencies. 

 The rule of agency deference had been in effect since its pronouncement by the Supreme Court in the case Chevron U.S.A. Inc v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The rule pertained to decisions made by federal administrative agencies involving ambiguous or incomplete congressional statutes and involved a two-step analysis by a court reviewing a challenge to the agency’s action under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. The court would first determine if Congress had specifically addressed the issue at hand in the relevant statute – if so, that was the end of the court’s inquiry and the court either upheld agency action aligning with congressional intent or rejected contrary action. Id. at 842. But if the court determined there to be an ambiguity in the law or the statute did not address the issue at hand, the court was to defer to the agency's expertise and not disturb the agency action in interpreting the statute, so long as the agency in essence acted reasonably and had support for its interpretation. Id. at 843, 865. This deference by the reviewing court had to be given, even if the court independently disagreed with the agency’s interpretation. Id. Under the Loper Bright decision, courts will no longer give such deference and are to interpret ambiguities and gaps in the law themselves in assessing an agency action challenge.

 The need for such agency interpretations is very common, because Congress cannot address every possible scenario or contingency when drafting statutes, such that laws are often unclear or incomplete. In the Chevron case, the Supreme Court had reasoned that allowing for agency interpretations made sense because the relevant agency would have the technical expertise and experience to fill in gaps in the law in a practical manner. Now courts will fill that role.

Although the nature of the process issue raised in the case – whether an agency or a court should interpret statutory ambiguities – may seem abstract on the surface, the Loper Bright ruling from Friday is groundbreaking and possibly affects 40 years of subsequent court decisions implementing the Chevron deference rule.  It has implications for tribes across the country in many different possible contexts – virtually all federal agencies with which tribes interact could be affected. But the specifics will have to be gained from future litigation testing how courts react with their new-found responsibilities under the Loper Bright decision.

In viewing the future of administrative action, the various views held of Chevron over the past four decades will undoubtedly be invoked. There are those who believed wholeheartedly in its deference to administrative agency experts, and do not believe courts could ever have sufficient technical expertise to tackle agency work. And many of those same supporters believe that agency interpretations of less-than-clear statutes are a form of policy-making that courts should not be taking from the executive branch with its prerogative to create policy under any given Presidential Administration. Those concerns will be compounded when taking into account most federal courts already have full dockets and limited bandwidth to take on a significant portion of the role of federal agencies. On the other hand, there are those who have complained for decades about many of the deficiencies in Chevron, noted in the Supreme Court decision overturning it – among them, the lack of uniformity in defining what constitutes a statutory ambiguity, the “thumb on the scale” bias upholding much agency action, and a lack of congruence with the Administrative Procedure Act in its direction that relevant questions of law are to be decided by reviewing courts, not agencies. Those alleged faults with Chevron are on top of its detractors’ most significant argument – Chevron failed to adhere to the Constitution’s separation of powers requirements and amounts to a power grab by the administrative state.  

So what does all of this mean for tribes? Like other parties dealing with federal agencies, many tribes have had a “love it” or “hate it” view of Chevron that often varied depending upon the particular matter at hand. If you were in front of an agency that granted a decision favorable to your cause and the agency had a reasonable basis for doing so, you had a good chance of it withstanding an appeal. But if the agency issued an unfavorable decision to you, or if the actions of another party that you opposed were approved, the chances for reversal on appeal often were challenging. After the Loper Bright decision, that dynamic may be less certain, because a court will now independently review any ambiguous or incomplete provisions of the law at hand, without necessarily taking into account the agency’s attempt to do so. That statement as to predictability is subject, of course, to the assumption that judicial review of agency action will itself be free from political or other predictable leanings.  

Regardless of how tribes may have felt about Chevron or its tendency to uphold agency decisions, one thing is almost certain from the Loper Bright decision – tribes need to plan to be part of the litigation that will be necessary to fill in the contours of the decision for years to come. That is not “the sky is falling” talk. Overruling, or at least calling into question, the past 40 years of administrative law precedent decided in Chevron and its progeny, without an overarching framework to take its place other than to say it is up to federal judges to take back from federal agencies the responsibility of interpreting federal law, will cause a major shift. And tribes need to be a part of the foundational rebuilding process. But doing so is likely to be costly for tribes and any other parties who routinely interact with federal agencies. The stability of agency deference likely will give way to the unpredictability of court interpretations (at least initially after this decision); unpredictable courts require a trial-and-error approach to get precedent in place to create future stability; and such an approach obviously will require a greater expenditure of time, effort and resources than a path with greater certainty from the outset.

What is the next step for tribes after Loper Bright and its overruling of Chevron?  Litigation budgeting and planning.  Because it’s coming, so tribes should get ready. That may be the one near-certainty stemming from the uncertainty caused by Loper Bright.