Waiting for Loper-Bright

Two thoughts on deference to agencies

Two quick thoughts on deference to agencies as we wait for major opinions from SCOTUS this week and next, including the Loper-Bright and Relentless cases, in which the petitioners ask the Court to overrule Chevron USA Inc. v. NRDC:

1. As argued in this earlier piece, and in this symposium paper, the overruling of Chevron, assuming for discussion’s sake that occurs, does not eliminate deference to agency legal interpretations. (Even putting aside so-called “Skidmore deference,” which isn’t really deference in the relevant sense, and is therefore misnamed). Caselaw, as well as legal scholarship, from before the Chevron era made the point that the “best reading” of the statute might itself just be a Congressional delegation of law-interpreting power to the agency, within the area or zone of statutory ambiguity — a delegation to which courts would be bound to defer, within the limits of the ambiguity, so long as the agency interpretation embodies a reasonable or permissible interpretation. Chevron and deference are distinct topics, and overruling the former does not eliminate the latter, although I am quite confident that the insta-analysis of whatever decision emerges will conflate those topics.

2. If Chevron is indeed overruled, one consequence will be to revive an old source of much confusion in administrative law: the differences and distinctions among questions of law, questions of fact, and “mixed” questions of the application of law to fact. Before Chevron, administrative law treatises and caselaw wrestled with these distinctions at length, often creating less and less clarity the more the topic was analyzed. In the Chevron era, the pressure on these distinctions was greatly lessened, as the legal consequences of classifying a question in one category or another were reduced; after all, agencies had authority (within reasonable bounds) over both factual questions and the resolution of legal ambiguities, so courts had less need to specify which sort of question was at issue. If the Court now says, as much of the argument and commentary urges it to say, that questions of law are for courts while questions of fact and policy are for agencies, the distinctions will become consequential again. Under such a framework, it is especially important to keep an eye on what the Court says about the application of law to fact. As the papers linked in point 1 above argue, much or most of “Chevron deference” can be recharacterized — and in the pre-Chevron era was already characterized — as agency authority to apply legal standards to the facts. If the Court says that courts must still defer to reasonable agency decisions as to such mixed questions of the application of legal standards, any overruling of Chevron will be largely an overruling in name only.