Very interesting - and plausible. I tend to think that in the medium and long run the institutional and structural factors that led to Chevron in the first place will reassert themselves. Judges don’t want to be deciding, independently, what is a “reasonable level of toxicity” etc. But only time can tell.
This whole situation reminds me of the dictum in the masterpiece "The Leopard", by the great Giuseppe Tomasi di Lampedusa, that "everything must change if we want everything to remain as it is". I think this applies very well to law in general. If law is fundamentally a tradition, it is to be expected that changes will be more apparent than really substantive, it seems to me. And that goes for both pretorian law and legislation. Even legislation that is seen as innovative and radically different from the previous state of affairs, for example, often ends up being interpreted on a day-to-day basis according to concepts, ideas and notions forged in the light of the previous regime. Man is an animal of habit. Law does not escape this circumstance of our nature.
As a former law clerk, I think the simple fact of the matter is that the rest of the Article III judiciary - you know, the ones who have to hear more than 70 cases a year because their jurisdiction is mandatory rather than by certiorari - have neither the time nor the inclination to reinvent the statutory wheel in every administrative law case (which, in our jurisdiction, added up to at least 1/3 of the docket). Deference will continue in some form because the judiciary simply has no other choice, and Loper Bright will make a big difference only in the highest profile administrative law fights.
Hope this entry is not irrelevant. Prof Vermeule’s thoughtful essay brings to mind the tenet of the Book of Change/I-Ching 易經 : The only constant is Change.
The nature of *Change* is revealed by Nature. This frame explains how in the philosophical tradition of China, the Law of Nature, as a matter of dictum, provides guidance in the understanding - a step that must precede administration - of Human Affairs. Law is an ongoing, good-faith conversation with the Guide that is Nature.
The key divergence from a postmodern conception of law extant in western jurisprudence is yet another notion: Given Change is constant, there is no *finality* in Change. Only Time can tell, and Time is continuous.
Thank you for another brilliant post, Professor! I am glad and grateful to see your new writing - you were very much missed. I am keeping on praying for you and your family during this painful time.
I originally thought it was suspicious that the Chief Justice wrote this opinion, and I think your analysis gives the tell for why he worked such a “revolutionary” “change,” here. But I think there’s another edge to this sword. As you note, Loper Bright does not, on its own terms, really change the formal structure of interpretive analysis in formerly Chevron-governed cases. But I think it does change what I (for lack of a better word) might call its princip[a]le. When we process an interpretive review under Loper Bright, we’re no longer doing so beginning from the "princip[a]le" of the institutional presumption of Chevron. We proceed from the princip[a]le of “finding the meaning of the statute” as judges “who say what the law [means].” Formally speaking, that is no departure from Chevron, because Chevron already entails “independently interpret[ing] the statute” to “effectuate the will of Congress,” as your work very persuasively argues.
But I think there’s a trick embedded in the unassuming reference to “interpretation," especially when it comes out of this Court's mouth. I think that the Court and the lower courts (and Federalist Society judges in particular) could largely preserve a Chevron retail regime, but I do not think they will as a norm, and definitely not in the more controversial cases. Instead, I suspect that the major questions doctrine (or something like it) will pick up where Chevron left off, especially because the Court has turned the MQD into an "interpretive" canon/presumption, especially because it now can't be "fit into" a Chevron "Step." The reference to the MQD in this case is subtle and passing, to be sure, but I think that's a bit misleading. Case-by-case hunts for the “best reading” of statutory provisions will, almost certainly, not work as a matter of course. So some kind of presumption-regime will need to pick up the slack (however small or large) that Chevron just dropped. The MQD already does this. Its new guise as a “descriptive” or "linguistic" canon (a theory that the Chief Justice seemed to endorse at page 27 of the slip opinion, for what it's worth) will make its accommodation to the new Loper "best reading" regime even more seamless. And the impetus for an invigorated MQD might lie precisely in the change in mood signalled by this case, precisely because (1) an "interpretive presumption" always reflects some orientation of policy, and (2) a change in mood (on a Court, anyway) is always a change at the level of policy at a high level of generality. As such, the coup might not be in the (stated) movement from an only ostensibly distinct Chevron to a generic "best reading," but in a transformation of the policy that "interpretation" will work in these cases: i.e., a shift from an essentially pro-delegation to an essentially anti-delegation theory of congressional intent, and therefore a shift towards nondelegation itself (however attenuated). Nature abhors a vacuum, and I strongly suspect that the anti-delegation innuendos of the MQD will fill the policy hole that Chevron leaves behind. Maybe enough that a smaller majority (i.e., without the Chief Justice) might feel emboldened to take a bigger bite out of the "deep state" apple.
Or, at any rate, so goes my hunch. Speaking as a student, I would be keen to learn your perspective on the connection between Chevron's death and what "interpretation" will look like going forward, especially vis-a-vis MQD. Thank you for reading - cheers!
I enjoyed reading this analysis but have one question. It seems that the court is no longer willing to infer that Congress delegated discretion to fill the gaps in a statute simply because the statute is vague or ambiguous. I think the Chief Justice even said “ that is no delegation at all.” My question is how will the courts determine that delegation was intended beyond mere ambiguity? The answer is that Congress can expressly make its intent clear but for the thousands of statutes already existing it probably hasn’t expressed a clear intent.
Well, there’s nothing in the opinion that says it always has to be express. Indeed, it gives several examples of situations in which delegation would be inferred.
Very interesting - and plausible. I tend to think that in the medium and long run the institutional and structural factors that led to Chevron in the first place will reassert themselves. Judges don’t want to be deciding, independently, what is a “reasonable level of toxicity” etc. But only time can tell.
This whole situation reminds me of the dictum in the masterpiece "The Leopard", by the great Giuseppe Tomasi di Lampedusa, that "everything must change if we want everything to remain as it is". I think this applies very well to law in general. If law is fundamentally a tradition, it is to be expected that changes will be more apparent than really substantive, it seems to me. And that goes for both pretorian law and legislation. Even legislation that is seen as innovative and radically different from the previous state of affairs, for example, often ends up being interpreted on a day-to-day basis according to concepts, ideas and notions forged in the light of the previous regime. Man is an animal of habit. Law does not escape this circumstance of our nature.
What a terrific insight. Love it.
As a former law clerk, I think the simple fact of the matter is that the rest of the Article III judiciary - you know, the ones who have to hear more than 70 cases a year because their jurisdiction is mandatory rather than by certiorari - have neither the time nor the inclination to reinvent the statutory wheel in every administrative law case (which, in our jurisdiction, added up to at least 1/3 of the docket). Deference will continue in some form because the judiciary simply has no other choice, and Loper Bright will make a big difference only in the highest profile administrative law fights.
Absolutely.
Well written. Both excessive deference to agencies AND excessive deference to judges help to enable Congress not doing its job.
Hope this entry is not irrelevant. Prof Vermeule’s thoughtful essay brings to mind the tenet of the Book of Change/I-Ching 易經 : The only constant is Change.
The nature of *Change* is revealed by Nature. This frame explains how in the philosophical tradition of China, the Law of Nature, as a matter of dictum, provides guidance in the understanding - a step that must precede administration - of Human Affairs. Law is an ongoing, good-faith conversation with the Guide that is Nature.
The key divergence from a postmodern conception of law extant in western jurisprudence is yet another notion: Given Change is constant, there is no *finality* in Change. Only Time can tell, and Time is continuous.
Thank you for another brilliant post, Professor! I am glad and grateful to see your new writing - you were very much missed. I am keeping on praying for you and your family during this painful time.
I originally thought it was suspicious that the Chief Justice wrote this opinion, and I think your analysis gives the tell for why he worked such a “revolutionary” “change,” here. But I think there’s another edge to this sword. As you note, Loper Bright does not, on its own terms, really change the formal structure of interpretive analysis in formerly Chevron-governed cases. But I think it does change what I (for lack of a better word) might call its princip[a]le. When we process an interpretive review under Loper Bright, we’re no longer doing so beginning from the "princip[a]le" of the institutional presumption of Chevron. We proceed from the princip[a]le of “finding the meaning of the statute” as judges “who say what the law [means].” Formally speaking, that is no departure from Chevron, because Chevron already entails “independently interpret[ing] the statute” to “effectuate the will of Congress,” as your work very persuasively argues.
But I think there’s a trick embedded in the unassuming reference to “interpretation," especially when it comes out of this Court's mouth. I think that the Court and the lower courts (and Federalist Society judges in particular) could largely preserve a Chevron retail regime, but I do not think they will as a norm, and definitely not in the more controversial cases. Instead, I suspect that the major questions doctrine (or something like it) will pick up where Chevron left off, especially because the Court has turned the MQD into an "interpretive" canon/presumption, especially because it now can't be "fit into" a Chevron "Step." The reference to the MQD in this case is subtle and passing, to be sure, but I think that's a bit misleading. Case-by-case hunts for the “best reading” of statutory provisions will, almost certainly, not work as a matter of course. So some kind of presumption-regime will need to pick up the slack (however small or large) that Chevron just dropped. The MQD already does this. Its new guise as a “descriptive” or "linguistic" canon (a theory that the Chief Justice seemed to endorse at page 27 of the slip opinion, for what it's worth) will make its accommodation to the new Loper "best reading" regime even more seamless. And the impetus for an invigorated MQD might lie precisely in the change in mood signalled by this case, precisely because (1) an "interpretive presumption" always reflects some orientation of policy, and (2) a change in mood (on a Court, anyway) is always a change at the level of policy at a high level of generality. As such, the coup might not be in the (stated) movement from an only ostensibly distinct Chevron to a generic "best reading," but in a transformation of the policy that "interpretation" will work in these cases: i.e., a shift from an essentially pro-delegation to an essentially anti-delegation theory of congressional intent, and therefore a shift towards nondelegation itself (however attenuated). Nature abhors a vacuum, and I strongly suspect that the anti-delegation innuendos of the MQD will fill the policy hole that Chevron leaves behind. Maybe enough that a smaller majority (i.e., without the Chief Justice) might feel emboldened to take a bigger bite out of the "deep state" apple.
Or, at any rate, so goes my hunch. Speaking as a student, I would be keen to learn your perspective on the connection between Chevron's death and what "interpretation" will look like going forward, especially vis-a-vis MQD. Thank you for reading - cheers!
I enjoyed reading this analysis but have one question. It seems that the court is no longer willing to infer that Congress delegated discretion to fill the gaps in a statute simply because the statute is vague or ambiguous. I think the Chief Justice even said “ that is no delegation at all.” My question is how will the courts determine that delegation was intended beyond mere ambiguity? The answer is that Congress can expressly make its intent clear but for the thousands of statutes already existing it probably hasn’t expressed a clear intent.
Well, there’s nothing in the opinion that says it always has to be express. Indeed, it gives several examples of situations in which delegation would be inferred.