As an attorney, your capacity to advocate for your clients often entails navigating the intricacies of statutory interpretation. On occasion, this entails litigating against governmental bodies to champion the interests of individual citizens. These challenges often involve litigation such as contesting decisions made by agencies such as the Social Security Administration (“SSA”), resisting impending deportation orders, or aiding businesses in countering demands from government entities. One obstacle in these legal battles is the formidable “Chevron doctrine,” also known as the “Auer doctrine,” which accords significant deference to an agency’s interpretation of statutory provisions. This article aims to provide insights into the strategies for successfully challenging the Chevron/Auer doctrine in your legal practice.

Unpacking the Historical Challenges

Embarking on the journey to challenge government agencies in court can often feel like navigating a labyrinth, buffeted by constitutional immunities, the Chevron doctrine, standing issues, and other barriers. To put it simply, it has been a great challenge even to move past an initial complaint and get to hearings or other proceedings. Governmental agencies have the advantage of being the party that makes the rules, and the rules tend to be in the agency’s favor. However, recent legal developments have breathed fresh life into this pursuit. The landmark 2018 case of Kisor v. Wilkie has introduced significant shifts that offer a new perspective on litigating against government agencies.

The Chevron/ Auer doctrine explained

Originating with the Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. case, the Chevron doctrine commands courts to defer to agencies’ reasonable interpretations of ambiguous statutes they administer by undertaking a two-step inquiry: first, the Court must establish whether the language of the statute is “ambiguous.” If the language of the statute is ambiguous, the Court considers whether the agency’s interpretation of the language is permissible. This deference often tilted the scales heavily in agencies’ favor, creating an uphill battle for litigants contesting agency decisions.

Auer deference, which stems from the Auer v. Robbins decision, extended courts’ deference to agencies’ interpretations of their own regulations, still employing the same two-step inquiry as Chevron does. This doctrine gave agencies substantial latitude in construing their rules, again often leaving plaintiffs at a disadvantage.

Chevron/Auer deference, however, is available only to the statute’s “Administrator,” which is the agency who has the authority of law in the statute.

Chevron is a ‘doctrinal dinosaur’

The Kisor v. Wilkie ruling changed the American legal/regulatory landscape. While the case was not a complete overhaul or elimination of Auer deference, the Supreme Court introduced a recalibrated approach. Kisor underscored that courts should defer to an agency’s interpretation of its own regulations only if that interpretation is reasonable and has undergone thorough deliberation. According to the majority in Kisor, courts considering an agency’s interpretation of a regulation must make a thorough attempt at interpreting the regulation. This attempt will involve application of all the traditional methods of interpretation, and a court must enforce the plain meaning those methods uncover. There may be no thought of deference unless the regulation remains genuinely susceptible to multiple reasonable meanings and the agency’s interpretation lines up with one of them. This analysis introduces a layer of scrutiny that compels agencies to provide substantial justifications for their interpretations.

The question of deference is being addressed by Congress, as well as by the courts. H.R. 288, known as the “Separation of Powers Restoration Act of 2023” (“SOPRA”) was passed by the House on June 15, 2023. SOPRA would abolish Chevron deference, and would authorize courts reviewing agency actions to interpret regulations de novo. While the bill has yet to be considered by the Senate, this legislation, in combination with the Supreme Court’s recent decision to grant certiorari to hear Loper Bright Enterprises, et al., v Raimondo, et al (a case that is a direct challenge to Chevron, seeking to have that case overruled), could be a sign that the doctrine is a “doctrinal dinosaur”.

To add to the “doctrinal dinosaur” characterization, Justice Gorsuch’s concurrence in Kisor stated that

The Court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis… THE CHIEF JUSTICE claims to see little practical difference between keeping it on life support in this way and overruling it entirely. So, the doctrine emerges maimed and enfeebled—in truth, zombified.

Strategic Litigation: A Path Forward

Effective challenges to agency actions post-Kisor are rooted in strategic litigation. You can help your clients by using the following steps:

1. Review whether the agency is an “Administrator” of the relevant Act; if not, deference to agency statutory interpretation does not apply.
2. Determine whether an “ambiguity” truly exists in the legislation by means of a thorough investigation in accordance with the Kisor method; if not, deference to agency statutory interpretation does not apply.
3. Establish whether the agency’s interpretation of the statute is permissible. If not, deference to agency statutory interpretation does not apply.

Conclusion

While the formidable challenges of litigating against government agencies endure, the evolving legal landscape, epitomized by Kisor v. Wilkie and the reconsideration of Auer deference, injects new vigor and complexity into this pursuit. Armed with an astute understanding of these shifts, litigants and legal practitioners can navigate the complexities of administrative law and pave the way for a more accountable governmental system. By leveraging strategic acumen, embracing innovation, and harnessing the power of well-constructed arguments, the seemingly insurmountable task of challenging agencies in court transforms into a path of promise and progress. On the other hand, the predictability provided by Chevron and Auer deference may go away, possibly leaving agency actions subject to a variety of ad hoc decisions by courts across the country. Great care will be needed to navigate this new legal landscape.

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