Professor Vermeule, I think you conflate the arbitrary and capricious test and the reasonableness of the interpretation test which was the purported domain of Chevron. As Justice Kagan specifically stated in Judulang v. Holder, 565 U.S. 42, 52 n. 7 (2011), the two tests are different. Thus, under that distinction, a regulation could be procedurally invalid (thus violating the arbitrary and capricious standard by, for example, failing to address material comments), but the second test of reasonableness of the interpretation is a different test. The domain of Loper Bright is in the latter category separately tested. Under Loper Bright, there is no longer a reasonableness of the interpretation standard but a de novo determination of the best interpretation by the court.
Having said (or claimed that), I am not sure Loper Bright will have outcome determinative results different than were generally made under the Chevron regime. That is because I intuited from general reading the cases under Chevron and specifically analyzing two large datasets of cases supposedly applying Chevron, I found that the courts may have noised about Chevron but in fact only approved interpretations they agreed with (basically their self-determined best interpretations). (In this regard, best interpretations are "reasonable", too.) There were just too many outs from approving reasonable but not best interpretationos (e.g., text not ambiguous,, agency interpretation unreasonable, MQD, etc.) to the courts having to apply an interpretation that they did not agree with. Other prominent authorities have perceived the phenomenon as well. Basically, in most cases, Loper Bright de novo interpretation will get courts to the same place as did Chevron.
The idea of the “reasonableness of the interpretation” doesn’t appear in my piece; you added it yourself. What both Prometheus and Seven County say is that the agency action must be “reasonable and reasonably explained.” And both Loper and Seven County say that while all statutes are read de novo, the statute itself may create a zone of delegated discretion, which is what my piece underscores. (By the way, Chevron-era cases like Judulang are irrelevant after Loper).
Professor Vermeule, my point was that Chevron and Loper Bright at interpretive regimes. "Arbitrary and capricious" is an APA procedural regularity regime, with a much more agency-forgiving standard. So, an interpretive regulation could pass arbitrary and capricious review and still must be tested under an interpretive regime--now Loper Bright de novo review.
I was under the impression that Chevron deference was being read in an over broad manner by courts such that deference was extended to administrative agency decisions even where clear statutory support for an action was lacking, and that the primary effect of Loper Bright was “merely” to require courts to look for a statutory basis related to the decision being taken. In other words, Congress (if such a thing were imaginable) was being placed, kicking and screaming, back in the drivers seat of administrative decision making. Am I wrong?
Well … so clear statutory support is not a general requirement, even under Loper, absent some specific canon (like the presumption against extraterritorial application of domestic laws). Loper leaves in place a broad range of cases that would come out in favor of agencies under Chevron, imho - see the linked articles.
Professor Vermeule, I think you conflate the arbitrary and capricious test and the reasonableness of the interpretation test which was the purported domain of Chevron. As Justice Kagan specifically stated in Judulang v. Holder, 565 U.S. 42, 52 n. 7 (2011), the two tests are different. Thus, under that distinction, a regulation could be procedurally invalid (thus violating the arbitrary and capricious standard by, for example, failing to address material comments), but the second test of reasonableness of the interpretation is a different test. The domain of Loper Bright is in the latter category separately tested. Under Loper Bright, there is no longer a reasonableness of the interpretation standard but a de novo determination of the best interpretation by the court.
Having said (or claimed that), I am not sure Loper Bright will have outcome determinative results different than were generally made under the Chevron regime. That is because I intuited from general reading the cases under Chevron and specifically analyzing two large datasets of cases supposedly applying Chevron, I found that the courts may have noised about Chevron but in fact only approved interpretations they agreed with (basically their self-determined best interpretations). (In this regard, best interpretations are "reasonable", too.) There were just too many outs from approving reasonable but not best interpretationos (e.g., text not ambiguous,, agency interpretation unreasonable, MQD, etc.) to the courts having to apply an interpretation that they did not agree with. Other prominent authorities have perceived the phenomenon as well. Basically, in most cases, Loper Bright de novo interpretation will get courts to the same place as did Chevron.
The idea of the “reasonableness of the interpretation” doesn’t appear in my piece; you added it yourself. What both Prometheus and Seven County say is that the agency action must be “reasonable and reasonably explained.” And both Loper and Seven County say that while all statutes are read de novo, the statute itself may create a zone of delegated discretion, which is what my piece underscores. (By the way, Chevron-era cases like Judulang are irrelevant after Loper).
Professor Vermeule, my point was that Chevron and Loper Bright at interpretive regimes. "Arbitrary and capricious" is an APA procedural regularity regime, with a much more agency-forgiving standard. So, an interpretive regulation could pass arbitrary and capricious review and still must be tested under an interpretive regime--now Loper Bright de novo review.
I was under the impression that Chevron deference was being read in an over broad manner by courts such that deference was extended to administrative agency decisions even where clear statutory support for an action was lacking, and that the primary effect of Loper Bright was “merely” to require courts to look for a statutory basis related to the decision being taken. In other words, Congress (if such a thing were imaginable) was being placed, kicking and screaming, back in the drivers seat of administrative decision making. Am I wrong?
Well … so clear statutory support is not a general requirement, even under Loper, absent some specific canon (like the presumption against extraterritorial application of domestic laws). Loper leaves in place a broad range of cases that would come out in favor of agencies under Chevron, imho - see the linked articles.
But the authority agencies are delegated has to come from somewhere. I will read the articles. Thanks for replying.