On February 24 U.S. Supreme Court Justice Clarence Thomas wrote that he would reconsider his 2005 Brand X opinion.

He indicated as such when making his remarks in dissent regarding the Court’s decision to not hear Baldwin v. U.S., which challenged Brand X. Thomas argued that Brand X appears to be “inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.”

The case of Brand X involved an application of the Chevron deference doctrine. Under Chevron deference, federal courts must defer to a federal agency’s interpretation of an ambiguous or unclear statute. Brand X built on the foundation of the Chevron doctrine by requiring courts to defer to agency interpretations of statutes even when courts previously held contrary views.

Justice Thomas argued that both deference precedents undermined the requirements of the U.S. Constitution. He wrote:

“Regrettably, Brand X has taken this Court to the precipice of administrative absolutism. Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations. Brand X may well follow from Chevron, but in so doing, it poignantly lays bare the flaws of our entire executive-deference jurisprudence. Even if the Court is not willing to question Chevron itself, at the very least, we should consider taking a step away from the abyss by revisiting Brand X.”

Ongoing litigation nationwide involves the Chevron deference doctrine.