WASHINGTON, D.C. – U.S. Senator Amy Klobuchar (D-MN) released the statement below following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, which overturned Chevron v. Natural Resources Defense Council, the long-standing precedent that courts provide deference to an agency’s interpretation of ambiguous federal statutes.
“This is a seismic shift. Congress passes laws and then federal agencies use their deep knowledge and expertise to implement them. In overturning decades of settled law, this extreme Court has given itself the power to second guess even the most complex regulatory decisions. This decision will result in chaos and undermine our ability to protect the health and safety of all Americans.”
As a member of the Senate Judiciary Committee, Klobuchar has emphasized the importance of the Chevron doctrine, and specifically asked each of Donald Trump’s Supreme Court nominees, all of whom joined today’s decision to overturn the landmark decision, if they would respect Chevron as precedent.
In 2017, during Justice Neil Gorsuch’s Senate confirmation hearing, Klobuchar pressed Gorsuch on his view, articulated as a lower court judge, that Chevron should be overturned. His views on Chevron were part of the reason Klobuchar did not vote to confirm Gorsuch.
In 2018, during Justice Brett Kavanaugh’s Senate confirmation hearing, Klobuchar questioned Kavanaugh on his views, wherein he stated that “Chevron serves good purposes… [AND] courts should not be unduly second-guessing agencies.”
In 2020, during Justice Amy Coney Barrett’s confirmation process, in response to written questions submitted by Klobuchar, Barrett affirmed that Chevron was “a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis.”
SENATOR KLOBUCHAR:
OK. On to another policy that’s pretty important. It’s the Chevron case. And in your Gutierrez concurrence, and this is where you wrote the actual opinion and then wrote your own concurring opinion, which I noted is better than writing a dissent to your own opinion, but you wrote a concurrence to your opinion, and to me, this move, as you imply in your concurrence, or you don’t even imply, you say, it could have titanic real world implications when it comes to rules — 13,500 cases on the books since 1984. In your book, you say you don’t overturn precedent unless it is universally accepted, affirmed by courts repeatedly, and people have extensive reliance on the decision.
So my question is, why in your concurring — and Senator Feinstein asked you about the facts of the case. I do not want to talk about that because she already did and I got your answer, that was good. But in the concurring opinion, you say, there is an elephant in room with us today. Sorry guys, he wasn’t referring to the Republican Party.
There is an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is, Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.
Quote, maybe the time has come to face the behemoth, end quote. That sounds to me like again, you are going a step further and talking about overturning a major precedent. I want to know if that’s what you mean, if you think it should be overturned, and if you’ve considered the ramifications of that when Justice Scalia himself was the original champion of the Chevron doctrine.
GORSUCH:
Senator, all I can do is explain to you why I was concerned about Chevron in that case. And I was concerned because again, we had an undocumented immigrant who was following judicial precedent —
KLOBUCHAR:
I really do understand the facts. But I want to know why you did a concurring opinion to your own opinion in order to make this broader sweep, and talk about you said, the time has come to face the behemoth. You were clearly talking about overturning Chevron.
GORSUCH:
Senator, I’m trying to answer your question as best I can. And I was concerned about the due process implications that arise in cases like Mr. Gutierrez, where an individual, who isn’t aided by an army of lawyers or lobbyists — can they anticipate changes in law by agencies back and forth willy-nilly, even to the point of overruling judicial precedent.
And that’s a due process concern I raised. I raised an equal protection concern about the ease with which individuals like Mr. Gutierrez can be singled out by political branch in a way that judges are supposed to protect. I raised a separation of powers concern about whether judges should be the ones saying what the law is.
KLOBUCHAR:
But as a Supreme Court justice, if you were to make this decision to overturn Chevron, would you consider the implications on an all of the cases in the U.S. and in the rules and the uncertainty it would create?
GORSUCH:
Oh, goodness Senator — yes.
KLOBUCHAR:
Would you overturn it? Is that what you’re — is that what this means when you talk about, maybe it’s time to face the behemoth?
GORSUCH:
Senator, my job as a circuit judge is when I see a problem, I tell my bosses about it. Like any good employee. And my job is there, as I conceived it, was to say hey, listen, look at some of the implications, the real world implications of what we’re doing here.
KLOBUCHAR:
OK, but you would be the boss if you were the Supreme Court justice. And what rule do you think should replace it? Should we have de novo review? Is that better? What do you think should replace Chevron, deference?
GORSUCH:
Senator, I don’t prejudge it. I can tell what did preexist it was Skidmore deference, which was written — an opinion written by Justice Jackson, actually. That’s what preexisted. So there was deference before. And we had the administrative state for 50 years. And agencies would issue rules and decisions.
I don’t know what all the consequence would be, and I would pledge to you, I wasn’t thinking about being a Supreme Court justice then. I was identifying an issue for my bosses. If I be so fortunate as to become a justice, I would try and come at it with as open a mind as man can muster. And I would tell you, remind you, what I bear in mind, David Sentelle — when I was with him as law clerk, issued a panel opinion at the beginning of my year with him going one way, and then by the end of the year, wrote for the en banc court, the full court, reversing himself.
Now some people think that’s — that doesn’t show a lack of sufficient steel. I think that shows an open mind and a lack of ego that a judge should bring to bear when he or she puts on the robe. And that’s what I would commit to you.
SENATOR KLOBUCHAR. One last question in this area on consumers.
The major rules doctrine actually raises questions to me about your view of Chevron, and as you know, it is that 1984 case—I would think it is settled law, but I will ask you that— where courts generally defer to reasonable interpretations of agencies. And what would you replace it with if you are not going to uphold it?
JUDGE KAVANAUGH. The precedent says that courts should defer to reasonable agency interpretations of ambiguous statutes, and the whole question of ambiguity has become a difficult inquiry. At least it has been in my 12 years of experience in the D.C. Circuit.
How much ambiguity is enough? And I wrote a law review article in the Harvard Law Review about that problem of judges disagreeing about ambiguity and how much is enough. But I also said in that article that Chevron serves good purposes in cases where it is somewhat of an overlap with the State Farm doctrine, so statutory terms like ‘‘feasible’’ or ‘‘reasonable’’ are terms of discretion that are granted to agencies and that courts should be careful not
to unduly second-guess agencies. And I have written an opinion, American Radio Relay League, where I made clear that courts should not be unduly second-guessing agencies.
Barrett Questions for the Record
- Chevron U.S.A. Inc. v. Natural Resources Defense Council (1984) is a landmark decision that has been referenced in more than 15,000 decisions, and has been reaffirmed by courts and judges across the ideological spectrum, including Justice Scalia. Was Chevron correctly decided?
RESPONSE: It would not be appropriate for me to opine on this question; as Justice Kagan explained, it is not appropriate for a judicial nominee to “grade” or give a “thumbs-up or thumbs down” to particular cases.
RESPONSE: Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis.
- Is Chevron a superprecedent?
RESPONSE: As I explained at the hearing, the term “super-precedent” means different things to different people. I have previously discussed the work of legal scholars who use “superprecedent” to refer to cases that are so well settled that no one seriously proposes overruling them. Chevron was not among the list of six cases that have been identified as superprecedents” in this scholarly context.
- You wrote in Precedent and Jurisprudential Disagreement (2013) that the doctrine of stare decisis serves many goals but that “the protection of reliance interests is paramount.” Do you believe that the reliance interests of federal agencies and regulated entities counsel against disturbing Chevron?
RESPONSE: Chevron is a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis. As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals relating to that precedent.
- If the Chevron doctrine were to be modified, what test should replace it? Should courts give any deference to agency interpretations? And if so, how much deference?
RESPONSE: Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) is a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis. As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals. Agencies routinely handle complex blended questions touching on technical and legal issues.
- In your article, Countering the Majoritarian Difficulty (2017), you suggest that courts should have “humility about the capacity of judges to evaluate the soundness of scientific and economic claims.” Do you believe that it is preferable for Article III judges to defer to agency expertise and judgment if it is within the reasonable bounds of the relevant statute?
RESPONSE: Numerous decisions of the Supreme Court have addressed when judges should defer to an agency. The question whether it is preferable for judges to defer calls for my views on a matter of public policy. As a sitting judge, it would be inappropriate for me to offer an opinion on the matter.
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