“…There’s a lot of interest in the Supreme Court’s Loper decision—and more than a few hot takes out there.
I wanted to offer some thoughts on it as someone who has litigated Chevron cases in private practice and served as the General Counsel and now Commissioner of an agency.
I’ve been on the winning side of cases where I think Chevron made the difference, been on the losing side of some of those same types of cases, and participated in many where I think the outcome would have been the same both before and after Loper.
But there’s no question that Chevron operated as a heavy thumb on the scale in favor of administrative agencies—regardless of whether those agencies were adopting new regulatory requirements or eliminating existing ones.
Though I think it would be fair to say that the lion’s share of Chevron cases involved challenges to agency decisions that imposed new regulatory requirements on private citizens or businesses.
One threshold point that I think some of the hot takes have missed. Even before this week’s decision in Loper, Chevron did not apply to the most significant agency decisions—namely, those that involve questions of major economic and political significance.
The major questions doctrine applied in those case, not Chevron. And the major questions doctrine does not require (indeed, it does not allow) courts to defer to agencies the way Chevron did. Rather, it requires agencies to have a clear congressional authorization to regulate in the manner at issue.
So Loper did not end the application of Chevron deference to agencies in cases that involve major economic and political significance. Courts were already prohibited by the major questions doctrine from applying Chevron deference in those cases.
Turning to Loper itself, the Supreme Court’s decision focused, in my view, on two core concerns with Chevron.
1. The Chevron doctrine rested on a fiction. It required courts to read certain provisions in laws passed by Congress—namely, provisions that were either silent or ambiguous as to a particular issue—as if those statutory provisions were something other than silent or ambiguous. Specifically, Chevron created a rule that required courts to treat those silent or ambiguous provisions of law as decisions by Congress to delegate discretionary authority to an administrative agency—regardless of whether the statute itself contained evidence indicating that Congress intended to provide the agency with that power.
That is not how courts normally read a vague or ambiguous provision of law. Outside the context of administrative law cases governed by Chevron, courts do not take vague and ambiguous statutory provisions and read them as delegations of power. Instead, courts apply traditional tools of statutory interpretation to identify the best reading or meaning of them. Maybe they mean that Congress delegated something, maybe not. Maybe they resolve the relevant question, maybe they have no application to the case at all.
So Loper ends this Chevron fiction. Loper says that courts in administrative law cases must now treat those silent or ambiguous provisions of law the same way courts treat other silent or ambiguous provisions of law passed by Congress. Going forward, then, courts must use ordinary tools of statutory interpretation to identify the best reading of those provisions. Applying those tools of statutory interpretation to silent or ambiguous provisions of law is something that falls within a judge’s expertise.
None of this means that Congress cannot delegate certain matters to agencies. Indeed, Loper says that Congress can still provide agencies with discretionary authority. But Congress must do so through statutory provisions or language where the best reading of the statute, applying traditional tools of statutory interpretation, is that Congress delegated discretionary authority to the agency, subject to ordinary constitutional constraints. Silence or ambiguity alone no longer requires a court to conclude that Congress delegated authority to an agency.
This is why many commentators view Loper as reinforcing the Framer’s decision in the Constitution to vest the legislative or law making power in the people’s representatives in Congress. Loper makes it less likely that courts will find that Congress leaked law making power to administrative agencies without Congress even knowing it. And even less likely that courts will uphold administrative agency decisions that effectively take legislative power from the Article I Branch that Congress never delegated.
2. I think the second problem that the Loper court had with Chevron is that Chevron required courts to adopt permissible readings of statutes, rather than the best reading. In those cases where Chevron courts determined that Congress delegated authority to an agency, the doctrine required courts to agree with an agency’s interpretation of law—even in cases where courts would have concluded, using ordinary tools of statutory interpretation, that the agency’s interpretation was not the best reading—provided that the agency’s reading was permissible.
Again, this is not the way courts approach questions of statutory law outside the context of administrative law. As relevant here, courts approach those questions by adopting the best reading of the law.
Commentators have noted that Chevron questions would arise in litigation between two parties—a private person or company on the one hand and a government agency on the other. In contexts other than administrative law, Chevron did not require a court to accept the permissible reading of a statute when offered by one party in the litigation (the government) even though the other party (the private citizen or business) offered a reading that the court considered to be the best reading of the law.
But Loper does not mean that an agency’s interpretation of a law it administers is irrelevant when it comes to administrative law cases. Loper makes clear that a court may agree with an agency’s view that a statutory provision means X even in cases where a court, in the absence of the agency’s views, might have concluded that the statutory provision means Y. Going forward, an agency’s views are likely incorporated into the court’s analysis as part of the judiciary’s application of its traditional tools of statutory interpretation.
But again, even before Loper, Chevron did not apply to cases involving questions of major economic or political significance. The Court has required agencies to point to clear congressional authorizations in those cases, not mere silence or ambiguity. So Loper did not end Chevron’s application to the most significant set of agency decisions.
At bottom, agencies will still win significant cases after Loper, but the Supreme Court’s decision puts regular people and businesses on a more level playing field with the government when they challenge a regulatory overreach…”
There’s a lot of interest in the Supreme Court’s Loper decision—and more than a few hot takes out there.
I wanted to offer some thoughts on it as someone who has litigated Chevron cases in private practice and served as the General Counsel and now Commissioner of an agency.…
— Brendan Carr (@BrendanCarrFCC) June 30, 2024