Tom Krause, NOSSCR Litigation Director

The doctrine of Chevron deference has been around almost as long as NOSSCR. Chevron deference provides that, where a statute is ambiguous, a reviewing court should defer to a reasonable interpretation of the statute the agency administers. The Supreme Court is now weighing two cases that could end Chevron deference, a doctrine often raised by the government in litigation under the Social Security Act.  

Almost 40 years ago, in June 1984, the U.S. Supreme Court decided Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 838, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). The Chevron decision involved a legal challenge to a change in the Environmental Protection Agency’s (EPA’s) interpretation of the Clean Air Act of 1963. Under Chevron deference, judicial review of an agency’s construction of the statute which it administers, looks to whether Congress has directly spoken to the precise question at issue. If Congress has not directly spoken to the issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. In Chevron, the Court concluded the EPA’s interpretation of the statute represented a reasonable accommodation of manifestly competing interests and was entitled to deference. Id.  

On January 17, 2024, the Supreme Court heard oral argument in two challenges to Chevron deference. Family-owned companies that fish for Atlantic herring oppose the application of Chevron deference to the implementation of an extensive federal fishery management program. Amy Howe, Supreme Court to hear major case on power of federal agencies, SCOTUSblog (Jan. 16, 2024). Several conservative justices expressed deep skepticism of the federal framework while the liberal justices offered support for keeping the system in place. Justice Amy Coney Barrett, one of three Trump appointees to the Court, raised the issue of “inviting a flood of litigation” if the Court reversed course. Carrie Johnson, Case brought to Supreme Court by herring fishermen may gut federal rulemaking power, NPR Law (Jan. 17, 2024).  

While many commentators note the possibility that the Court might overrule Chevron, at least one commentator believes that it is not just possible, but probable. See Amy Howe, Supreme Court likely to discard Chevron, SCOTUSblog (Jan. 17, 2024). Government Executive’s Eric Katz agreed, noting Elizabeth Prelogar, the U.S. solicitor general, said Chevron followed precedent that long predated its formal creation and overruling it would cause “profound disruption.” Eric Katz, Supreme Court appears ready to end deference to federal agency expertise, Gov’t Executive (January 17, 2024).  

At this point, we don’t know the fate of Chevron deference and probably will not know until June, possibly July. In the meantime, let’s review five cases where the Supreme Court discussed Chevron deference in cases arising under the Social Security Act.  

1. Smith v. Berryhill, ___ U.S. ___, 139 S. Ct. 1765 (2019) 

In Smith, the Court held that the Appeals Council’s dismissal of a claimant’s untimely request for review of an ALJ’s merits decision is a “final decision . . . made after a hearing” and so subject to judicial review. The Court refused to accord Chevron deference to a policy limiting federal court review of an agency decision.  

2. Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2012) 

Two children, conceived through in vitro fertilization after the death of their late father and who could not inherit from the decedent under Florida’s intestacy law, were not entitled to Social Security survivor’s benefits. The Court held that SSA’s interpretation of the ambiguous statute was at least reasonable and so was entitled to deference under Chevron. 

3. Barnhart v. Thomas, 540 U.S. 20, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) 

The Court upheld SSA’s decision finding the claimant not disabled as she could return to past relevant work as an elevator operator, even if that job no longer existed in significant numbers in the national economy. The Commissioner’s policy was a reasonable interpretation of the Social Security Act defining “disability,” and was entitled to deference under Chevron. 

4. Barnhart v. Walton, 535 U.S. 212, 122 S. Ct. 1265, 152 L. Ed. 2d 330 (2002) 

In Walton, the Court found SSA’s regulation constituted a reasonable interpretation of the Social Security Act and entitled to Chevron deference. SSA’s policy provided that a return to work within 12 months of disability onset and before the adjudication of disability precluded a finding that a claimant is disabled or entitled to a trial work period.  

5. Lawrence on Behalf of Lawrence v. Chater, 516 U.S. 163, 116 S. Ct. 604, 133 L. Ed. 2d 545 (1996) 

The Court concluded a grant of certiorari, vacatur, and remand (GVR) was appropriate in light of a new interpretation of the Social Security Act that SSA had adopted concerning the establishment of paternity under state law. SSA re-examined the role of state paternity and intestacy laws in the federal benefits scheme and interpreted the Social Security Act as requiring a determination, in some circumstances, of whether the state intestacy statute is constitutional. The Act directed the Commissioner of Social Security—not, in the first instance, the courts—to apply such law as would be applied by the state courts. The Court deferred to SSA’s recently changed policy.  

For now, we are left with questions. Will the Supreme Court overrule Chevron? Limit its scope? Will the Court’s ruling affect any of the Social Security cases discussed above? A quick search on WestLaw found 10,000 cases citing Chevron. What will happen to all these cases? Will they all be re-litigated with differing results? This summer, the Supreme Court will rule. We will have to wait and see what happens after that. Stay tuned; we will keep you updated.