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You Can Drive Past a Chevron, but No Longer Have to Pull In

Over twenty years ago, the Supreme Court of the United States adopted the so-called Chevron Deference Doctrine in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).  The Chevron Doctrine established that administrative agency construction of statutes is entitled to judicial deference.  In the years that followed, a large number of states adopted the doctrine as applied to their state’s law.

As summarized eight years ago by the Mississippi Supreme Court in Rayner v. Barbour, 47 So. 3d 128, 131 (Miss. 2010):

[W]hen a statute is not ambiguous, this Court applies the statute according to its plain meaning and need not apply principles of statutory construction.” Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (Miss.2008). But if there is ambiguity, the interpretation afforded by the [state agency] must be upheld if it is “based on a permissible construction of the statute.” Id. at 241 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,> 467 U.S. 837, 842–43 (1984)). This Court affords considerable weight to the construction given to a statutory scheme by the agency entrusted to administer it. Id.

(some citations omitted) (emphasis added).

Famously, in 2016, then-Judge Neil Gorsuch authored a separate opinion concurring in his own majority opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), that affording no deference to administrative agencies’ interpretation of statutes, would enable “[C]ourts [to] fulfill their duty to exercise their independent judgment about what the law is.” (Gorsuch, J., concurring).  On June 6, 2018, Mississippi adopted now-Justice Gorsuch’s view and abrogated a long line of cases applying Mississippi’s version of the Chevron Doctrine.

In King v. Mississippi Military Department, 245 So.3d 404, 407 (Miss. 2018), the Mississippi Supreme Court held “that the Court bears the ultimate responsibility to interpret statutes.”  It further found that affording agency deference to statutory interpretation violated Mississippi constitutional provisions on separation of powers between the executive, legislative and judicial branches.  Id. at 407-08.   While ultimately unanimously affirming the state agency decision in the case, the court did so based on a de novo review of the statutes at issue, employing standard cardinals of statutory construction and affording no agency deference.

Many legal commentators have suggested in recent years that the Chevron Doctrine may be heading for the dustbin of legal history, even at the federal level.  Just days after the King decision, then Justice Kennedy concurred in Pereira v. Sessions, __ U.S. __, 138 S. Ct. 2105, 2120 (June 21, 2018) that “[t]he type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still.”  With Justice Gorsuch now on the Supreme Court and Judge Kavanaugh likely to soon join him, it may soon be the case that you can drive past a Chevron, without having to pull in.

E. Barney Robinson, III

Barney Robinson, Attorney, Butler Snow Law Firm, Jackson, Mississippi office

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