The Supreme Court has overruled Chevron v. Natural Resources Defense Council, finally interring a doctrine of statutory interpretation that it had narrowed and largely abandoned in recent years. Although Chief Justice John Roberts’ opinion in Loper Bright Enterprises v. Raimondo emphasizes that principles of stare decisis mean that prior decisions relying on Chevron remain good law, overruling Chevron may continue the Court’s pattern of sending shock waves through parts of administrative law.
For foreign relations and national security cases though, any effects are more likely to be ripples than waves. The Supreme Court has long given weight to the executive branch’s views in foreign relations and national security cases based on functional justifications – like executive branch expertise and access to information – that the Court today emphasizes are consistent with the Administrative Procedure Act (APA), which governs how many agencies create regulations and enforce laws.
For several decades, Chevron’s two-step test was synonymous with the idea of judicial deference to agency statutory interpretations. Chevron specified that judges should first determine “whether Congress has directly spoken to the precise question at issue,” and if so, “give effect to the unambiguously expressed intent of Congress.” If the statute, however, was “silent or ambiguous,” then courts would give effect to the agency’s “reasonable interpretation,” even if it was not the one the court itself would have chosen. The Supreme Court has not been subtle in its growing signals of discontent with Chevron. As the Court today notes, it has not relied on the doctrine since 2016, and even before then, it did not rely on Chevron in some cases where the framework by its terms applied (Op. at 32). More recently, the Court has used the “Major Questions Doctrine” to sidestep Chevron deference to agency statutory interpretations in cases involving questions of “deep ‘economic and political significance.’”
In foreign relations and national security-related cases, however, the Supreme Court has traditionally deferred to the executive branch and has often done so for reasons separate and apart from Chevron. For example, in a case about application of the material support to terrorism statute, the Supreme Court noted that “when it comes to collecting evidence and drawing factual inferences in this area, ‘the lack of competence on the part of the courts is marked,’ … and respect for the Government’s conclusions is appropriate.” In an earlier case challenging the executive’s denial of a security clearance, the Court similarly explained that “it is not reasonably possible for an outside non-expert body [i.e., the Court] to review the substance of such a judgment” or to “determine what constitutes an acceptable margin of error in assessing the potential risk.” These sorts of functionalist reasons for courts to give weight to executive branch views on foreign relations and national security-related issues are consonant with the long-standing Skidmore deference that the Court reaffirmed in its opinion today.
In Skidmore v. Swift & Co., the Court noted that courts may give weight to the views of an executive branch administrator though how much weight “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Roberts’s opinion for the Court in Loper Bright emphasizes that, as judges “exercise independent judgment in determining the meaning of statutory provisions,” they “may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes. Such interpretations ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ consistent with the APA.” (citing Skidmore (Op. at 16)).
In foreign relations and national security-related cases, judges often emphasize their comparative lack of institutional competence vis-à-vis the executive, and so going forward, the Court’s reemphasis of the Skidmore factors suggests that deference to the executive will continue – for many of the same reasons it has all along. As the Chief Justice noted, an agency’s interpretation of a statute “may be especially informative ‘to the extent it rests on factual premises within [the agency’s] expertise” (Op. at 25). While that caveat may ultimately soften the blow of Chevron’s demise throughout administrative law, it is especially likely to apply to many foreign relations and national security-related cases.
In addition to its emphasis on the Skidmore factors, the Court also took pains to note that some statutes authorize an agency to “exercise a degree of discretion,” such as by “giv[ing] meaning to a particular statutory term” or “regulat[ing] subject to the limits imposed by a term or phrase that ‘leaves agencies with flexibility’” (Op. at 17). Some of the key statutes that underpin the executive’s national security efforts likely fall within this category. Consider, for example, the International Emergency Economic Powers Act (IEEPA), which underlies the vast U.S. economic sanctions regime, among other things. IEEPA authorizes the President to exercise a plethora of emergency powers whenever he declares a national emergency “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” The breadth of this delegation has drawn criticism from some quarters, but it undoubtedly does grant the executive branch considerable discretion.
If foreign relations and national security issues escape the tumult prompted by Chevron’s overruling, such exceptionalism would not itself be exceptional. The Court has engaged in “foreign affairs exceptionalism” for some time, analyzing foreign affairs-related issues “in distinct ways as a matter of function, doctrine, or methodology.” Even Justices who are most committed to the project of reining in the administrative state seem willing to carve out foreign relations-related issues. In explaining his vision for a reinvigorated non-delegation doctrine to limit congressional delegations of authority to the executive branch, Justice Neil Gorsuch nonetheless identified areas where delegations would remain permissible, including where Congress and the executive have overlapping constitutional authorities and where the exercise of delegated authority depends on executive factfinding – citing foreign relations-related examples to support both.
How the Court’s decision will play out in many areas of administrative law remains to be seen. The Court today vacated the two circuit court opinions below in Loper Bright and its companion case, Relentless Inc. v. Dep’t of Commerce, because they applied Chevron to interpret the Magnuson-Stevens Fishery Conservation and Management Act and deferred to agency interpretations. But the implications for foreign relations and national security-related cases seem less momentous. As a purely descriptive matter, the renewed primacy of Skidmore seems likely to inure to the executive’s benefit with respect to foreign affairs and national security. Whether that is normatively desirable is a separate – and much debated – question.