Last month, I moderated a live and virtual program at the American Bar Association Business Law Section 2023 Fall Meeting in Chicago.  The program was entitled: “U.S. Supreme Court to Revisit Chevron Deference: What the SCOTUS Decision Could Mean for CFPB, FTC and Federal Banking Agency Regulations.”  My co-panelists were Professor Jonathan S. Masur from the University of Chicago Law School and Lauren Campisi from Hinshaw & Culbertson.

A recording of the program is now available on the ABA’s website at no charge to members of the ABA Business Law Section and a modest charge for others.

Spoiler Alert:  Since granting certiorari in Loper Bright Enterprises v. Raimondo, the Supreme Court has granted certiorari in a second case, Relentless, Inc. v. U.S. Department of Commerce, in which the question presented is also whether the Court should overrule its 1984 decision in Chevron.  My co-panelists and I believe that the Supreme Court will overrule Chevron in the two cases (which have been consolidated for purposes of oral argument in January 2024). 

Under the “Chevron framework” derived from the 1984 decision, a court will typically use a two-step analysis to determine if it must defer to an agency’s interpretation.  In step one, the court looks at whether the statute directly addresses the precise question before the court.  If the statute is silent or ambiguous, the court will proceed to step two and determine whether the agency’s interpretation is reasonable.  If it determines the interpretation is reasonable, the court will ordinarily defer to the agency’s interpretation.

If the Supreme Court overrules Chevron, it could throw into a cocked hat longstanding Supreme Court and other court decisions that relied exclusively on Chevron to validate a federal agency regulation.  An example of such a decision would be Smiley v. Citibank, N.A., 517 U.S. 735 (1996), in which the Supreme Court relied exclusively on an OCC regulation defining “interest” under Section 85 of the National Bank Act to include late fees on credit cards.  That decision held that a national bank could charge late fees allowed by the bank’s home state to cardholders throughout the country and ignore limitations on late fees in the laws of the states where the cardholders reside.