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.
The worry I have is not so much that courts will fully abandon the Chevron ideas of using agency expertise to decide technical question, but that judges will no longer feel the slightest obligation to consider the agency's position if it conflicts with the result they want. Where before, skipping over the Chevron steps could be overturned as a misapplication of the law, it seems that it will be dramatically harder for an appellate court to find an individual judge's "interpretation" as contrary to law as long as they throw in buzzwords like "careful attention has been paid to the Executive Branch's judgment" before discarding it completely.
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.
I appreciated the nuances in the Vermeule article and also the comments by readers. But there's an issue that has gotten lost in debates about federal agency expertise. Before Jimmy Carter's "reform" of the Pendleton Civil Service act of 1883, Civil Service commissioners were bipartisan and career civil service administrators and scientists had substantial apolitical credibility. But Carter wanted the executive to control agency policies and introduced a new partisan OPM and a "floating" Senior Executive Service, 10% of whom be temporary administrators serving under Plum Book appointees. This effectively brought us back to Andrew Jackson's spoils system. Reagan's appointees used the CSRA it to "clean house" in EPA and the Dept. of Interior in rolliing back enforcement of environmental laws. Under every president since then we have had musical chairs in the agencies after changes in administration. So those vaunted agency "experts" don't exercise independent opinion. In political sensitive areas they're chosen to do what they are told. I'm a former federal scientist and would love to give real independent agency experts discretion. But that time is behind us. [ for detail see Debate over Chevron in The Hill Magazine by Manheim]
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.
I think you’ll find that article you mention is the opposite of arguing for dismantling the administrative state. In fact, basically half of Adrian’s oeuvre has been an elaborate defence of bureaucracy and the administrative states contribution to the common good. So wrong in basically every conceivable way!
I agree. That paper strongly criticized libertarian admin law. I read it.
The problem I have is that Loper is exactly an example of the ideological libertarian law movement he criticized 9 years ago, but now he ignores that critique and downplays both the ideological thrust of Loper and its role in "dismantling the administrative state".
I came to your work via reading a draft paper by Sunstein on Loper - that paper too goes far too soft and equivocal on Loper and what it really means.
That paper strongly criticized libertarian admin law. I read it.
The problem I have is that Loper is exactly an example of the ideological libertarian law movement he criticized 9 years ago, but now he ignores that critique and downplays both the ideological thrust of Loper and its role in "dismantling the administrative state".
I came to your work via reading a draft paper by Sunstein on Loper - that paper too goes far too soft and equivocal on Loper and what it really means.
Suggest the author Google "dismantle the administrative state" (and Federalist Society and Project 2025). Ideology, strategy, and an agenda are driving these legal doctrines. US Senator Whitehouse has explained what's going on, among many others.
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.
The worry I have is not so much that courts will fully abandon the Chevron ideas of using agency expertise to decide technical question, but that judges will no longer feel the slightest obligation to consider the agency's position if it conflicts with the result they want. Where before, skipping over the Chevron steps could be overturned as a misapplication of the law, it seems that it will be dramatically harder for an appellate court to find an individual judge's "interpretation" as contrary to law as long as they throw in buzzwords like "careful attention has been paid to the Executive Branch's judgment" before discarding it completely.
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.
I appreciated the nuances in the Vermeule article and also the comments by readers. But there's an issue that has gotten lost in debates about federal agency expertise. Before Jimmy Carter's "reform" of the Pendleton Civil Service act of 1883, Civil Service commissioners were bipartisan and career civil service administrators and scientists had substantial apolitical credibility. But Carter wanted the executive to control agency policies and introduced a new partisan OPM and a "floating" Senior Executive Service, 10% of whom be temporary administrators serving under Plum Book appointees. This effectively brought us back to Andrew Jackson's spoils system. Reagan's appointees used the CSRA it to "clean house" in EPA and the Dept. of Interior in rolliing back enforcement of environmental laws. Under every president since then we have had musical chairs in the agencies after changes in administration. So those vaunted agency "experts" don't exercise independent opinion. In political sensitive areas they're chosen to do what they are told. I'm a former federal scientist and would love to give real independent agency experts discretion. But that time is behind us. [ for detail see Debate over Chevron in The Hill Magazine by Manheim]
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.
The author co-authored this paper 9 years ago: did he forget all that?
Libertarian Administrative Law
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5873&context=uclrev
I think you’ll find that article you mention is the opposite of arguing for dismantling the administrative state. In fact, basically half of Adrian’s oeuvre has been an elaborate defence of bureaucracy and the administrative states contribution to the common good. So wrong in basically every conceivable way!
I agree. That paper strongly criticized libertarian admin law. I read it.
The problem I have is that Loper is exactly an example of the ideological libertarian law movement he criticized 9 years ago, but now he ignores that critique and downplays both the ideological thrust of Loper and its role in "dismantling the administrative state".
I came to your work via reading a draft paper by Sunstein on Loper - that paper too goes far too soft and equivocal on Loper and what it really means.
You clearly haven’t read it
Here's where I'm coming from - NJ Law Journal:
Letter to the Editor: Response to Recent 'Chevron' Deference Piece
https://www.law.com/njlawjournal/2024/07/17/letter-to-the-editor-response-to-recent-chevron-deference-piece/
I read it.
That paper strongly criticized libertarian admin law. I read it.
The problem I have is that Loper is exactly an example of the ideological libertarian law movement he criticized 9 years ago, but now he ignores that critique and downplays both the ideological thrust of Loper and its role in "dismantling the administrative state".
I came to your work via reading a draft paper by Sunstein on Loper - that paper too goes far too soft and equivocal on Loper and what it really means.
Suggest the author Google "dismantle the administrative state" (and Federalist Society and Project 2025). Ideology, strategy, and an agenda are driving these legal doctrines. US Senator Whitehouse has explained what's going on, among many others.
Absolutely.
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.