# The End of the Chevron Era 

The Administrative Procedure Act empowers courts—not agencies—to decide a statute’s single best meaning.

August 5, 2024 • Commentary 

By [Thomas A. Berry](https://www.cato.org/people/thomas-berry) 

This article appeared in *[The Regulatory Review](https://www.theregreview.org/)* on August 5, 2024.

In [*Loper Bright Enterprises v. Raimondo*](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf), decided together with its companion case [*Relentless v. Department of Commerce*](https://www.supremecourt.gov/DocketPDF/22/22-1219/269124/20230614154139867_Petition%20for%20Cert%20Relentless%20v.%20US%20Dept.%20of%20Commerce.pdf), the U.S. Supreme Court [announced](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=43) a sea change in administrative law: “*Chevron* is overruled.” To the majority, this decision marks the end of an era of judicial abdication. To the dissenters, overruling *Chevron* [amounts](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=85) to a massive judicial power grab. What is certain is that by overruling a decision that had been [cited](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=107) in over 18,000 federal court opinions, the Supreme Court has handed down one of the most important decisions in the history of administrative law.

In 1984, a six-justice quorum of the Supreme Court decided [*Chevron U.S.A. v. Natural Resources Defense Council*](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf). In his opinion for the *Chevron* Court, Justice John Paul Stevens [announced](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf#page=6) a new “two-step” framework for resolving disputes over the scope of an agency’s statutory authority. Under this standard, a court must first [consider](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf#page=6) “the question whether Congress has directly spoken to the precise question at issue.” This first question should [be](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf#page=6) “the end of the matter” if “the intent of Congress is clear,” because courts “must give effect to the unambiguously expressed intent of Congress.” At this stage, courts must [employ](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf#page=7) “the traditional tools of statutory construction” to ascertain whether “Congress had an intention on the precise question at issue.”

It was the second step that would make *Chevron* a landmark case. If a court [finds](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf#page=7) that “Congress has not directly addressed the precise question at issue,” then, under *Chevron*, the agency’s interpretation can become determinative. In this situation, *Chevron* [instructed](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf#page=7) that a court should “not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Instead, courts should [ask](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf#page=7) “whether the agency’s answer is based on a permissible construction of the statute.” If the answer is “yes,” *Chevron* [required](https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf#page=8) that the court defer to the agency’s interpretation.

The Administrative Procedure Act empowers courts—not agencies—to decide a statute’s single best meaning.

In *Loper Bright*, Chief Justice John Roberts [wrote](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=9) for a six-justice majority. His opinion homed in on the text of the [Administrative Procedure Act](https://www.archives.gov/federal-register/laws/administrative-procedure) (APA), which [requires](https://www.law.cornell.edu/uscode/text/5/706) that “the reviewing court shall decide all relevant questions of law” in agency cases. The Court [held](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=23) that this text “means what it says,” and [therefore](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=26) the “deference that *Chevron* requires of courts reviewing agency action cannot be squared with the APA.”

The majority [reasoned](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=24) that for a court to “decide” a question of law, that court “must exercise independent judgment in determining the meaning of statutory provisions.” The majority [concluded](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=29) that “*Chevron* defies the command of the APA” because 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 most important premise underlying the *Loper Bright* majority’s reasoning is that there [is](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=31) always a single best reading of a statute. “In an agency case as in any other, …there [is](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=31) a best reading all the same—‘the reading the court would have reached’ if no agency were involved.” The logic of the Court’s opinion necessarily [relied](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=30) on this premise—that “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning.” And if that premise is accepted, then it “[makes](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=31) no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.”

In defending *Chevron*, the government had [argued](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=29) that Congress implicitly delegates interpretive authority to agencies when it leaves ambiguities in statutes. On that view, *Chevron* simply implements congressional intent.

But the majority rejected this argument by looking, once again, to the text of the APA. As the Court [noted](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=22), the APA “*does* mandate that judicial review of agency policymaking and factfinding be deferential,” and thus “Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled pre-APA understanding that deciding such questions was ‘exclusively a judicial function.’” In other words, Congress knew how to mandate deferential review when it drafted the APA, and it chose not to do so for questions of law.

Looking beyond the APA, the Court [rejected](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=32) all of the government’s proposed reasons why Congress would supposedly prefer that courts defer to agencies.

First, the Court [addressed](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=31) the theory that “Congress must generally intend for agencies to resolve statutory ambiguities because agencies have subject matter expertise regarding the statutes they administer.” The Court [insisted](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=32) that judges do not need *pre-existing* expertise to make an informed legal judgment in technical cases, since “the parties and *amici* in such cases are steeped in the subject matter,” and “reviewing courts have the benefit of their perspectives.” Agencies, just like any other party, can [use](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=33) their technical expertise to persuade a court by making convincing arguments in their briefs. For these reasons, the Court [found](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=33) the better presumption to be “that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch.”

Next, the Court [considered](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=32) the government’s argument that “deferring to agencies purportedly promotes the uniform construction of federal law.” Once again, this theory could not hold up under the majority’s foundational premise that questions of administrative law have a single correct answer and that judges are tasked with determining that right answer. In many instances, the government will [select](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=33) an interpretation that is *not* the court’s best view of the law, and “there is little value in imposing a uniform interpretation of a statute if that interpretation is wrong.”

Finally, the Court [reiterated](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=34) that *Chevron* is about legal questions, not policy questions: “It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation.” The majority opinion [reassured](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=25) that overruling *Chevron* will not change how courts review statutes that truly delegate policymaking decisions to agencies: “Some statutes ‘expressly [delegate](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=25)’ to an agency the authority to give meaning to a particular statutory term. … Others empower an agency to prescribe rules to ‘fill up the details’ of a statutory scheme…or to regulate subject to the limits imposed by a term or phrase that ‘leaves agencies with flexibility,’ …such as ‘appropriate’ or ‘reasonable.’” In those situations, courts should [continue](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=26) to “effectuate the will of Congress… by recognizing constitutional delegations,” just as they have before.

In both *Loper Bright* and *Relentless*, the challengers had made not only statutory arguments against *Chevron*, relying on the APA, but also constitutional arguments, relying on [Article III](https://www.law.cornell.edu/constitution/articleiii). Notably, the majority opinion relied solely on the APA for its holding, declining to hold that Article III of the Constitution *requires* non-deferential review of questions of law. Although the opinion [included](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=15) [several](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=34) [references](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=34) to the Framers and their motivations for granting [Article III judges](https://www.uscourts.gov/judges-judgeships/about-federal-judges) life tenure and salary protection, the Court never went so far as to suggest that *Chevron* deference violated Article III’s command that the “judicial power of the United States” [be](https://www.law.cornell.edu/constitution/articleiii) vested in the federal courts.

The Court may have declined to reach this constitutional question simply because it was unnecessary to do so; when a case can be decided on statutory grounds rather than constitutional grounds, the Court will normally [take](https://www.law.cornell.edu/wex/constitutional_avoidance) that route. But another possibility is that the majority was implicitly responding to the government’s and dissent’s claim that Congress in fact [*wants*](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=29) courts to defer to agencies. If that claim of congressional intent is in fact true, nothing in the majority opinion prevents Congress from reinstating *Chevron* deference tomorrow. Congress need only amend the portion of the APA vesting all decisions of law in the reviewing court and explicitly add a rule of deference.

In a solo [concurrence](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=44), Justice Clarence Thomas briefly noted that he believes *Chevron* deference violates Article III of the Constitution. In another solo [concurrence](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=48), Justice Neil Gorsuch seemed sympathetic to that view, [writing](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=67) that under *Chevron* “authorities long thought reserved for Article III are transferred to Article II.” The views of the other four justices in the majority on this constitutional question remain unknown, and the question would be likely to arise only if Congress does in fact mandate deferential review in the APA or another statute.

Justice Gorsuch’s concurrence also [addressed](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=55) his views on [*stare decisis*](https://www.law.cornell.edu/wex/stare_decisis) and his considerations when evaluating a precedent. Besides the obvious point that, in the view of Justice Gorsuch and the majority, *Chevron* was wrongly decided, two other factors [were](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=55) key to his view that *Chevron* should be overruled. Justice Gorsuch [argued](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=59) that “*Chevron* deference runs against mainstream currents in our law regarding the separation of powers, due process, and centuries-old interpretive rules.” And he further [argued](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=59) that the *Chevron* two-step arose from “stray statements” in the *Chevron* opinion that were in tension with “more considered language in that same decision.”

Justice Elena Kagan [dissented](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=82), joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Justice Kagan [rejected](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=88) the majority’s foundational premise that the types of questions decided under *Chevron* have only one best answer. In Justice Kagan’s [view](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=88), it is often the case that “a statutory phrase has more than one reasonable reading. And Congress has not chosen among them: It has not, in any real-world sense, ‘fixed’ the ‘single, best meaning’ at ‘the time of enactment.’”

Justice Kagan [believes](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=94) that answering the types of questions previously found “ambiguous” under *Chevron* “does not mainly demand the interpretive skills courts possess. Instead, it demands one or more of: subject-matter expertise, long engagement with a regulatory scheme, and policy choice.” And Justice Kagan’s view that these are *policy* choices, not legal decisions, informed her view of what Congress would likely want courts to do. Her dissent [argued](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=88) that *Chevron* deference “rests on a presumption about legislative intent.” As Justice Kagan [put it](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=83), Congress knows that regulatory “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.”

Justice Kagan also [found](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=96) the text of the APA perfectly consistent with this presumption. Looking at the APA text on which the majority relied, Justice Kagan [argued](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=97) that the APA “does not prescribe a *de novo* standard of review” for legal questions and that a court just as much “decides” a legal question when it uses a deferential standard, as *Chevron* called for.

Ultimately, the majority’s implicit response to this criticism is that if Congress disagrees with the majority’s view, the ball remains in Congress’s court. Not only may Congress amend the APA, it may also [draft](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=25) any individual statute so that its “best reading…is that it delegates discretionary authority to an agency.” Or, if Congress [disagrees](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=33) with the policy that results from a court’s interpretation, it is “always free to act by revising the statute.”

The Court’s opinion in *Loper Bright* sets no limitations on Congress’s ability to *explicitly* delegate policy choices to the Executive Branch (the extent to which such delegations may be limited by the nondelegation doctrine is a question for another case). Instead, the opinion has [ended](https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf#page=34) what was, in the majority’s view, a harmful legal fiction that prevented courts from doing their jobs: “By forcing courts to…pretend that ambiguities are necessarily delegations, *Chevron* does not prevent judges from making policy. It prevents them from judging.”

##### About the Author 

[![Thomas Berry](/sites/cato.org/files/styles/author_picture/public/2026-02/2025-10-16-Thomas%20Berry-sq_0.jpg?itok=SW7WagUw)](/people/thomas-berry) 

##### [Thomas A. Berry](/people/thomas-berry)

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

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