Supreme Court Overturns Chevron, Does it Impact Trade Cases?

Jul. 1, 2024
By: Hannah B. Kreinik

As has been extensively reported, the United States Supreme Court’s recent opinion in Loper Bright Enterprises v. Gina Raimondo, Secretary of Commerce, 603 U.S.  (2024), overturned the Court’s 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), regarding deference given federal agency decisions by courts. The question for trade practitioners is whether this matters (much).

Under Chevron, the Supreme Court interpreted § 706 of the Administrative Procedures Act (“APA”) to require a two-step inquiry to determine how much deference a court should give an agency’s interpretation of the law. Step one was whether Congress had directly addressed the issue. If not, the second step was whether the agency’s interpretation was a “permissible construction of the statute.” The agency didn’t have to have the most reasonable or correct interpretation, just a “permissible one.” Loper overturned this analysis, requiring the courts to give less deference to agency determinations.

Interestingly, Chevron has been of limited impact on trade and customs cases. In antidumping and countervailing duty cases Chevron has not been used to evaluate specific decisions made by agencies. Instead, the courts have reviewed the decisions to determine if they are arbitrary, capricious, or a violation of law. In many Customs cases the courts have applied the reasoning of Skidmore v. Swift & Co., 323 U.S. 134 (1944), to review rulings to determine 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.” This was specifically decided for rulings in United States v. Mead Corp., 533 U.S. 218 (2001).

All of which is to say that the end of Chevron deference will be very important in some fields. However, in trade-related litigation it is unlikely that litigants or importers will see any significant difference. No matter what happens, Barnes Richardson & Colburn attorneys are here to help your company navigate changes to the legal system.