Chevron By Any Other Name

From “Chevron Deference” to “Loper Bright Delegation”

Please, everyone, take a deep breath. Although the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo has now overruled the Chevron decision on deference to agencies, there is much less to Loper Bright than meets the eye. Overheated praise and overheated condemnation of the decision both miss the mark. It is entirely possible that much or most of what was (somewhat misleadingly) called “Chevron deference” can be and will be recreated under a different label: “Loper Bright delegation.” Indeed, the Court has already recreated it under that label, in the Loper Bright opinion itself.

Let me begin with Henry Monaghan, a brilliant scholar of public law from Columbia University, and an article he wrote in 1983 titled “Marbury and the Administrative State.” Monaghan’s central point was that there was no logical inconsistency between saying two different things: (1) the constitutional power and duty of judges to say what the law is, and the Administrative Procedure Act’s instruction to courts to decide all relevant questions of law,¹ require judges to decide all legal questions independently; (2) agencies rather than courts may have the authority to fill in the details of statutory gaps or ambiguities. The reason those two things are consistent is simple. When judges identify the “best reading” of the statute, that best reading might itself just be that an explicit or implicit congressional delegation of such authority to the agency has occurred. Justice Kagan has underscored this point a number of times.

What are the logical consequences of Monaghan’s view? In a paper for an excellent recent symposium on Chevron deference in the George Mason Law Review, I explained that, on Monaghan’s logic, Chevron could be “overruled” in name, but then immediately reinstated under a different label — the label of delegation. That reinstatement could even occur in the very same decision that “overruled” Chevron. If I may be forgiven a self-quotation:

“[On this possibility,] deference will be reframed but not eliminated. The overruling majority will say—along lines indicated by Professor Henry Monaghan decades ago—that de novo or plenary judicial review of agency legal interpretations is required by legal sources (either by the Administrative Procedure Act (“APA”), by Article III, or both). Yet the Court will also say that de novo interpretation might of course itself yield the conclusion that, in a given statute, Congress has delegated primary responsibility to agencies to fill in statutory gaps or ambiguities, subject to judicial review to ensure that agencies have remained within the scope of the delegation and chosen policy on reasonable grounds. This second possibility—call it retail Chevron rather than wholesale Chevron—will offer the Justices skeptical of Chevron an attractive resolution of the[ir] dilemma; it will allow the majority not only to overrule Chevron but, even more importantly, to be seen to overrule Chevron, while also largely preserving Chevron’s major source of appeal to judges—a way to avoid having to actually do fully independent interpretation of statutory terms that are vague, technical, or both.”

That is what has now occurred, almost exactly. The majority in Loper Bright argued, on the one hand, that “Chevron cannot be reconciled with the APA by presuming that statutory ambiguities are implicit delegations to agencies.” But with its other hand, the majority almost immediately took that all back. The Loper Bright opinion contains an enormous Monaghan-style loophole, through which most if not all of the Chevron regime can easily fit. Here is the critical passage, reproduced without internal citations — except for one especially significant citation to a law review article:

“In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes expressly delegate to an agency the authority to give meaning to a particular term. Others empower an agency to prescribe rules to ‘fill up the details’ of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as ‘appropriate’ or ‘reasonable.’ When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, ‘fix[ing] the boundaries of [the] delegated authority,’ H. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27 (1983), and ensuring the agency has engaged in ‘reasoned decisionmaking’ within those boundaries. By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.”

What this means is that many, most or even all of the cases that were previously called “Chevron deference” cases can now be relabeled as “Loper Bright delegation” cases. A concrete example may be useful. In her characteristically clear-minded dissent, Justice Kagan listed a series of statutory problems, drawn from real statutory schemes, that courts confront. To shoplift one of her examples:

“Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park—specifically, to ‘provide for substantial restoration of the natural quiet.’ How much noise is consistent with ‘the natural quiet’? And how much of the park, for how many hours a day, must be that quiet for the ‘substantial restoration’ requirement to be met?”

It should be obvious that a Chevron approach to this statutory problem can proceed almost exactly as before, just with different labeling. Interpreting the statute independently, the judges will now say that the best reading itself is that Congress has (in the majority’s terms) “authorized the agency to exercise a degree of discretion” in giving necessary specification and concretization to “substantial restoration,” and so forth.

Put differently, in the terms familiar under the pre-existing and now defunct Chevron regime, all Chevron step two cases could always have been re-labeled as Chevron step one cases - er, I mean, Loper Bright delegation cases. That is, cases that used to be labeled as “deference to reasonable agency interpretations of ambiguous statutes” will now be called “independent judicial interpretation that identifies a single best answer, an answer that consists of a delegation of discretionary authority to agencies within a given range.” But that relabeling changes rather little. It’s as though Chevron really only ever had one step, so that everything that was done under Chevron can also be done under the rubric of independent judicial interpretation.

To be sure, one might say (as I said in the indulgent self-quotation above) that the resulting regime represents a retail rather than wholesale version of Chevron. Whereas Chevron was said to rest on a general presumption that gaps and ambiguities represented a delegation to agencies, judges will now have to decide, statute by statute and problem by problem, whether a Loper Bright delegation is the best reading of the statute. But it is also true that Chevron was always already a retail regime, in the sense that judges always had to decide, statute by statute and problem by problem, what decision Congress had made about the issue at hand. At most, the Loper Bright majority and dissent disagree over whether agency authorization to fill in gaps and ambiguities should be understood as a general guiding presumption, or instead as a case-by-case conclusion. But as general presumptions have always had to be applied at retail in cases, it’s hard to see that the wholesale-to-retail transition will make any major difference, legally or substantively. Even if Loper Bright delegation is best understood as a retail version of Chevron, a relabeled version of Chevron it remains.

The Justices in the majority also seem to think, and indeed more or less said, that the sort of discretionary-choice-within-a-reasonable-range that the Monaghan relabeling leaves to agencies is best understood as “policymaking” rather than “interpretation.” That understanding saves the appearances, as the theologians say, and allows the Justices to take themselves to be doing all the law, while the agencies only ever do policy. (In the loophole passage I have quoted from the majority opinion, the majority included references to some famous cases of arbitrariness review, doubtless due to this conceptualization of discretionary-choice-within-a-reasonable-range as “policymaking”). But, of course, as many pointed out under the Chevron regime, the authorized agency choice of a specifying or concretizing interpretation within a reasonable range is itself always also policymaking, within a “policy space.” Such choice by agencies is both interpretation and policymaking, 100% the one and 100% the other, in a kind of hypostatic union of the administrative state. The classical law understood this, and treated such questions under the heading of determination, rather than trying to effect a metaphysical separation of interpretation and policymaking. But if the relabeling makes the Justices feel better, and changes little of substance, who are we to complain?

If all this is correct, why would the majority overrule Chevron in form and name while re-creating it, or most of it, under the guise of “independent interpretation”? It seems that the Loper Bright opinion “expressed a mood,” as Justice Frankfurter once said of Congress in a somewhat different administrative law context. The mood is that “We the Judges say what the law is.” But if Monaghan is correct, and the Court very much seems to think he is, then when judges independently say what the law is, they may say that the law itself delegates discretionary choice to agencies within a reasonable range whose outer boundaries are judicially identified - which is of course the Chevron regime in a nutshell. The rather fractious mood the Justices have expressed is one that can rather easily be appeased with a different form of words, as in a famous parable.

It is perhaps not excessive or vulgar realism to point out as well that the relabeling of “Chevron deference” as “Loper Bright delegation” gives a conspicuous headline victory to the conservative-libertarian legal movement, while at the same time leaving in place the deeper institutional and structural rationales that animated Chevron deference in the first place. The Chief Justice is nothing if not institutionally sensitive, and is surely aware that a regime without the Monaghan Loophole is potentially a recipe for disaster. The Court has spent much of the current Term overturning decisions from overly aggressive lower appellate courts, most conspicuously the Fifth Circuit. In that world, the combination of an apparent headline victory for legal conservative-libertarians with a relabeling that preserves much of the institutional substance of the Chevron regime seems an ideal recipe (on premises that, needless to say, I do not share, but merely aim to explicate here).

As Augustus, not to mention Machiavelli, understood, people judge by forms and outward appearances, judge more by the eye than the hand - which perhaps explains why Justice Gorsuch signed on to the majority opinion. Loper Bright is in this sense best understood as an Augustan settlement of the deference problem.

1. The APA was not Monaghan’s main focus, but fairly read his article, and the later commentary, make clear that the logic of his argument extends straightforwardly to that context.