Footnote nine Chevron: when SCOTUS comes to South Bend
Devin Humphreys | Tuesday, January 31, 2023
Well, I was the Doof.
Last October, I wrote a piece in which I laid out my thoughts on how recent cases that had come before the Supreme Court had changed how we should understand the impact of the Chevron doctrine. To remind everyone: the Chevron doctrine sees justices follow a two-step program for figuring out who decides what congressional legislation means. Step one: is the statute ambiguous? If so, go to step two: has the relevant administrative agency given the statute a reasonable construction? If so, defer to that agency construction. If step one or two fails, the court interprets the statute. In that October piece, I argued that when the Supreme Court unanimously decided in AHA v. Becerra to stop using the “traditional tools of statutory interpretation” rather than follow the Chevron flowchart explicitly, “the Court adopted a decision that walks like it doesn’t overturn Chevron, talks like it doesn’t overturn Chevron, but yet basically overturns Chevron.” While I still mostly stand by what I wrote then, recent events require me to elaborate, and in a crucial sense change, my view on this legal doctrine.
It is sometimes easy to forget how special an institution Notre Dame is in many respects, but the one that’s germane here is the incredible access we have to various justices of the United States Supreme Court. In my two and a half years at this institution, four sitting Supreme Court justices — Justice Barrett, Justice Thomas, Justice Alito and, most recently, Justice Kavanaugh — have given public speeches to Notre Dame law students, and Chief Justice Roberts is also known to have enjoyed the occasional Notre Dame tailgate as well. These haven’t all been your standard, somewhat ubiquitous “VIP gets ushered in, gives speech, shakes hands, kisses babies and is whisked away” events either. My time at Notre Dame has blessed me with the opportunity to have direct interactions with some of the members of our nation’s highest court. From having lunch with Justice Alito and 10 fellow law students and undergrads in the fall of 2021 to taking Justice Barrett as a professor for statutory interpretation with fourteen of my classmates just last fall, Notre Dame Law School has given me unparalleled access to the most influential jurists in all the land.
Just last week, this track record of unparalleled access continued with Justice Kavanaugh’s visit to campus. Justice Kavanaugh was the keynote speaker at the Notre Dame Law Review’s annual Federal Courts symposium, and this year’s topic was the history and structure of the Administrative Procedure Act. Since the APA provides the scaffolding for the vast majority of administrative agency actions in modern federal government, I realized that if Justice Kavanaugh ended up taking questions, it would potentially be an opportunity to ask him directly to clarify the AHA v. Becerra decision (which he wrote), so I signed up for the lottery for a seat in the Eck Hall Courtroom. And then the email came: I had secured a seat for Justice Kavanaugh’s keynote address! So on Monday the 23rd, I was admitted to the Courtroom, where we were each handed a card with a QR code to submit questions electronically. Questions had a 160-character limit, so I spent the next 15 minutes (before the Justice’s talk began) drafting, revising, and drafting again. Just in time to submit before Justice Kavanaugh began speaking, I had it: “Does your decision in AHA v. Becerra to stop at using the ‘traditional tools of statutory interpretation’ return to the letter of Chevron or reject its spirit?”
My efforts paid off. Justice Kavanaugh decided to structure the event as a Q&A from the get-go, and with Dean G. Marcus Cole moderating, we hit the ground running. My question was the first that Dean Cole selected to ask the Justice. Given that Justice Gorsuch recently called for the project of Chevron to be given “a tombstone that no one can miss,” I half-expected Justice Kavanaugh to decline to answer such a direct question about this important area of administrative law. Instead, though, Justice Kavanaugh took the opportunity to very helpfully clarify his view both of what the Chevron doctrine actually is and what AHA v. Becerra did accordingly. Per the Justice, “you’re either a footnote 9 Chevron person or a non-footnote 9 Chevron person, and I’m a footnote 9 Chevron person.”
Footnote 9 of Chevron insists that the classic “is-the-statute-ambiguous” and “was-the-agency-reasonable” test only applies when a statutory ambiguity exists after a court has used the very same “traditional tools of statutory interpretation” that Justice Kavanaugh discussed (admittedly without citing Chevron) in his unanimous AHA opinion. Generally, if a justice is abiding by footnote 9 of Chevron when deciding a case involving an administrative agency, then Chevron itself doesn’t stand for all that much. This is because when judges use all of the traditional tools of statutory interpretation, they typically arrive at an answer as to what a statute means. If this happens, and judges don’t throw their hands in the air and say “this is too hard, therefore the statute is ambiguous,” then there is no opportunity to look at how an agency interpreted the statute since Chevron itself says courts and judges only do that when they cannot resolve such apparent ambiguities themselves.
This is big news for the future of the administrative state more generally, and whether you prefer wider federal agency discretion or more significant agency constraint, there’s both good and bad news in Justice Kavanaugh’s answer to my question. On the one hand, given that Justice Kavanaugh is now on record as believing that Chevron properly understood (including footnote 9 of Chevron) should be applied in cases involving agencies’ statutory interpretation, those who would prefer overturning Chevron outright have one less vote to work with toward that end, significantly decreasing the likelihood that an overhaul of such a fundamental doctrine of administrative law will succeed. On the other hand, though, since footnote 9 of Chevron significantly restricts the extent to which agencies will see their interpretations deferred to by the federal courts, a more intentional emphasis on footnote 9 might not “basically overturn Chevron” as I had prognosticated in October, but it will make Chevron less relevant to how the Supreme Court decides cases involving administrative agencies in the years to come.
I have two takeaways from last week’s events: first, while many of the opportunities I’ve had to interact with those on the Supreme Court while at Notre Dame have come through serendipitous right-place-right-time sorts of encounters, this particular instance of Justice Kavanaugh answering my question in a meaningful way seems to have been an instance of Jesus’s “ask, seek, knock” gospel in action. Second: sometimes, the best we can hope for when trying to understand a newly released case is to have accurately identified the point on which future decisions will turn. My October piece wasn’t wrong, but it certainly wasn’t 100% right either, and so it is with much of how we understand case law in general. It’s our job, as members of the legal profession, to do what we can to clarify unclear law, whether as advocates, judges, clerks or professors. This week, it was an incredible honor to play a small part in that ongoing work.
Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel, singing with the Liturgical Choir or Chorale or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music and free scholarly publication ideas, reach out to Devin at [email protected] or @DevinJHumphreys on Twitter.
The views expressed in this column are those of the author and not necessarily those of The Observer.