The title result is Loper Bright Enterprise v. Raimando It was the Supreme Court that overturned Chevron v. NRDC and ended the practice Chevron respect. While this is important, I am one of those who believes that the impact of this decision will be milder than some may anticipate. maybe so Loper Bright “Place a tombstone Chevron No one will miss out,” but the most important aspect of this decision is the weeds. As I suggested in February , the extent to which a rule restricts an agency depends more on its role than its label.
The chief’s decision is Loper Bright Reaffirms that judges must first interpret the statute and that courts are not obligated to follow an agency’s interpretation of a statute unless that interpretation is convincing. In fact, respect for the rules replaces respect for the rules. That is, just as was the case before Chevron, the reviewing court needs to hear the opinions of each agency, but must still make an independent judgment on the meaning of the statute. As the chief has repeatedly pointed out, the rule is that courts should give institutions “due respect” and not be deferential.
As the Chief Justice explained, Alexander Hamilton federalists 78, “‘the interpretation of the law’ will be ‘the proper and peculiar jurisdiction of the court.'” At the same time, “the court recognized from the outset that…the exercise of independent judgment will often include due respect Executive branch interpretation of federal regulations.
The Chief Justice also explained that “respect” is far from obedience.
However, “respect” only goes so far. The opinions of the administrative department can provide a basis for the judgment of the judicial department, but cannot replace the judgment of the judicial department. Whatever deference is due to the interpretations of the executive branch, judges are “certainly not obliged to adopt the interpretation given by the head of the department.” . . . Otherwise, judicial trials will have no independence at all. As Justice Story said, “If [a court’s] own judgment. . . different[ed] “Unlike in the case of other high-ranking officials,” the court “does not have the power to surrender or surrender.”
Explaining what this means in practice, the chief noted Skidmore formulation, which includes consideration of the agency’s expertise and experience, as well as the thoroughness of the agency’s considerations. Thus, agency expertise remains important, but it does not provide agencies with a trump card when statutory language is difficult to parse or somewhat unclear.
To ensure that solutions to statutory ambiguities are fully understood through subject matter expertise, it is simply not necessary to delegate final interpretation authority to agencies. A better assumption, therefore, is that Congress expects the courts to perform their day-to-day job of interpreting statutes with full deference to the views of the executive branch.
(Please note that the expression “due respect” appears here again.)
The opinion also noted that long-standing agency interpretations, or interpretations provided concurrently with regulations, may deserve more attention than later interpretations. This is not surprising given the Chief Justice’s repeated focus on what I call “old wine in new bottles.” Agencies fulfill their obligations as part of the executive branch by carrying out congressional directives, not by deciding on a preferred (or White House-mandated) course of action and then looking to regulations for potential sources of legal authority.
This emphasis on giving institutions “due respect” rather than deference effectively returns judicial review of institutional actions to its previous status quo Chevron, with an important caveat. From the promulgation of the “Administrative Litigation Law” to the formulation of the “Administrative Litigation Law” Chevron Under that doctrine (which, to be clear, came long after that decision), agencies have sufficient authority to enforce federal regulatory statutes and are not specifically impeded by judicial review. This suggests that agencies can regulate without compliance. what will be different after Loper Bright It is not so much a lack of respect as it is the contextual approach to statutory interpretation adopted by the federal courts. preChevron Courts often accept broadly purposive interpretations of federal statutes. Today, the situation is less serious. Statutory interpretation in the 2020s is more textualistic and restrictive than in the 1970s and 1980s.
this Loper Bright The opinion also expressed concerns about the nature and scope of the authority that were often absent from judicial review of agency actions in the late 20th century. As the Chief Justice wrote: “At best, our complex Chevron The authorization principle merely distracts from the important question: Does the statute authorize the challenged agency to act?
The chief justice noted that courts must respect Congress’ decision to delegate powers to regulators, while emphasizing that courts should also “set the boundaries of the law.” [the]Authorization. Chevron, such delegation should not be assumed. Ambiguities and gaps alone cannot be thought to represent much. Congress authorizes what it authorizes, and a failed delegation is a failed delegation. (In effect, all that is left is silence.) Likewise, while a statutory gap or ambiguity may be intended to leave room for agency operations, it may also be nothing more than poor drafting. While the former may require certain elements of authorization, the latter does not.
Going forward, courts will continue to support agencies’ reasonable interpretations of regulations, particularly when the subject matter is technical or complex, and agencies will still exercise broad policy discretion because Loper Bright Comments are clearly considered. However, agencies will have to spend more time considering and demonstrating how their desired approach to a particular regulation best aligns with the relevant text, and will be less likely to change or overturn long-standing regulatory interpretations without returning to Congress. If regulations have been around for decades without meaningful revisions or modifications, this will make it more difficult for agencies to adapt to changing conditions. So the big question is whether Congress gets the message and responds with more frequent legislation (Chris Walker and I have some thoughts on this).
My bottom line is Loper Bright The shift from obedience to respect is less a revolution than a modest course correction. This decision alone will not tame the administrative state, but it may give Congress greater incentive to revisit existing statutory powers and ensure that agencies have the authority they need to do what Congress wants them to do.
