Chevron Deference and Artificial Intelligence

By CHHS Extern Dallin Richardson

Those who are paying attention to Supreme Court current events know that following the oral argument in Loper Bright Enterprises v. Raimondo and its companion case, Relentless, Inc. v. Department of Commerce, the doctrine of Chevron deference is likely not long for this world. Chevron doctrine causes courts to yield to an executive agency’s reasonable interpretation of ambiguous statutory language, provided Congress has not weighed in on the precise issue in question. This doctrine is at the core of current administrative law and allows agency experts, specialized in their fields, to aid courts by virtue of their advanced technical acumen. An end to that “doctrine of humility” would place that interpretative power exclusively back in the hands of courts, although – as J. Kagan has said – “we know in our heart of hearts that . . . agencies know things that courts do not.” And as artificial intelligence continues to radically change the fabric of virtually every sector, the expertise which agencies bring to the table will be of ever-increasing importance as an aid in the interpretation of AI legal questions. Such agencies certainly have an advantage over the members of Congress: “Congress knows there are going to be gaps [in any future artificial intelligence legislation] because Congress can hardly see a week into the future with respect to [AI]”.

Looking toward the future and the unpredictable predicaments which AI is sure to cast upon the country, the core question may rather be posed this way, with some further help from Justice Kagan: Where should the balance of official interpretative weight lie? “. . . what Congress is thinking is, ‘Do we want courts to fill that gap? Or do we want an agency to fill that gap?’ When the normal techniques of legal interpretation have run out, on the matter of artificial intelligence, what does Congress want?”

It is a valid concern that, despite the woes of vacillating policy interpretation that some fear in handing the final word back to the courts, letting an executive agency dictate the final interpretation of ambiguous statutory language may have a similar vacillating effect, possibly changing every four to eight years. And of course, there is sure to be far from a uniform interpretive posture or access to expertise across US Circuit Courts. Further, although Justice Thomas now seems ready to sweep away the Chevron doctrine, in 2005 he expressed the majority opinion for National Cable v. Brand X that “agency inconsistency” is no reason to eliminate the Chevron framework.

Some would argue that it doesn’t matter what Congress wants, it matters what Article III of the Constitution says, which is that courts hold the judicial power and thus they alone handle interpretation of law. But proponents of Chevron deference would argue that the doctrine does not undermine judicial authority; rather, it guides a court in resolving legal disputes by deferring to an appointed agency who have both the needed expertise and democratic accountability to the public, making them much more reasonable decision makers in matters of technicality and scientific choice when compared to the hundreds of unelected, relatively inexperienced judges who would otherwise bear the burden.

It is important to remember that the true authority in these matters is Congress; Chevron deference arises only when congressional statutory intent is ambiguous. The guiding principle should always be congressional intent. In oral arguments for Relentless, Inc v. Department of Commerce, J. Kagan opined: “Congress knows that this court and lower courts are not competent with respect to deciding all the questions about AI that are going to come up in the future. And what Congress wants, we presume, is for people who actually know about AI to decide those questions. And also those same people who know about AI are people who . . . are accountable to the political process.”

Regardless of what Congress may or may not want for the future of AI and other legislation, the Court may be poised to speak for hundreds of lower courts across the country and make that decision for them. But how did it come to this? It bears repeating that Congress is the primary statutory authority and the first word on statutory interpretation. Congress could speak for itself and mandate specific interpretive construction. Congress could legislate interpretive authority either to agencies or to the courts. Though Congress cannot be expected to foresee the problems to which AI will give rise, is it unreasonable to expect Congress to tell us who gets to decide in a tiebreaker? Is it too much to ask Congress to indicate when they want a court to have the final word, and when, instead, the relevant agency should provide needed clarity?