If the war to overturn Chevron v. NRDC (1984) is to be won many battles will probably have to be won first.

While overturning Chevron isn’t on the table in Coventry Health Care of Missouri v. Nevils, limiting it is. The State and Local Legal Center (SLLC) asked the Court in its amicus brief to rule that Chevron deference does not apply when an agency is construing the scope of a statute’s preemption provision, absent Congress’s assent.   

In Chevron v. NRDC the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. States and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power. 

The facts of this case aren’t of particular interest to state and local governments. After the Missouri Supreme Court ruled that the Federal Employees Health Benefits Act’s (FEHBA) preemption clause does not preempt a Missouri law, the agency that administers FEHBA promulgated a rule saying FEHBA’s preemption clause preempts the Missouri law. The Missouri Supreme Court, refusing to apply Chevron deference to the agency’s rule interpreting FEHBA’s preemption clause, again ruled that FEBHA doesn’t preempt Missouri law.

The SLLC amicus brief agrees with the Missouri Supreme Court that regulations interpreting preemption clauses should not receive Chevron deference unless Congress has “directly and unequivocally” authorized the agency to determine the scope of a preemption clause.

The brief points out that “agency interpretations that preempt state law raise questions not only about the separation of powers among the federal branches, but also about the appropriate balance of power between state and federal governments.”  “[A]gencies are specialized institutions focused on achieving their narrow regulatory objectives—often insensitive to the specific concerns of state and local governments—[and] courts are far better suited to resolve these questions of constitutional federalism with a broad and unbiased focus.”

All of the “Big Seven” (the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, and the International City/County Management Association) joined the brief which was written by William Stein, Scott Christensen, Sam Cowin, Eleanor Erney, and Stephen Halpin of Hughes Hubbard & Reed.