By David Lehn
For the past 40 years, courts have applied the Chevron framework when reviewing federal agencies’ interpretation of federal statutes. Last Friday, the Supreme Court overturned Chevron in Loper Bright Enterprises v. Raimondo. At its core, Loper Bright holds that, for the most part, courts, rather than agencies, must resolve statutory silence and ambiguity to determine a statute’s “single, best” meaning. This will alter the way that agencies and courts interpret statutes, but maybe not as much as some might think. Loper Bright also leaves some important questions unresolved.
Under the Chevron framework, courts deferred to—that is, they were bound by—an agency’s interpretation if it was a reasonable resolution of a statutory “gap.” To be reasonable, the agency’s interpretation had to be within constitutional and statutory limits as understood by the courts. Chevron thus gave agencies bounded discretion to interpret statutes—and, importantly, discretion to change their interpretations, even if a court had already upheld the agency’s interpretation as reasonable gap filling. See National Cable & Telecommunications Ass’n v. Brand X Internet Services.
Chevron rested on the notion that Congress could delegate policy decisions to agencies and that courts should review those decisions deferentially. Thus, the critical question in any given case was: is this issue a policy decision that the statute delegated to the agency? Chevron established that courts are responsible for answering that question and that they must do so by using all the “traditional tools” of statutory interpretation, but that courts must presume Congress intended to delegate the decision to the agency if they find that the statute is silent or ambiguous on the specific issue—that was the “gap” for the agency to “fill.”
Loper Bright retains all but the final piece of this framework. The Court acknowledges that Congress may delegate certain decisions to agencies, and when Congress does so, courts must defer to those decisions as long as they are reasonable. And the Court emphasizes that it is still the courts’ task to determine whether a statute delegates the decision on a specific issue to the agency. But, the Court holds, mere statutory silence or ambiguity no longer automatically marks such a delegation. Instead, courts must adopt the “single, best meaning” of the statute, which may include judicially resolving silence and ambiguity. Loper Bright reasoned that courts can and routinely do determine meaning in the face of textual silence or ambiguity—after all, that’s what the traditional tools of statutory interpretation are designed to do—and that Chevron’s premise that statutory silence or ambiguity reflects a congressional intent to delegate authority to the agency does not “approximate reality.” Rather, ambiguity more often reflects a mistake or “the limits of human language or foresight.”
Loper Bright summarized judicial duties under this new regime: “judges [must] independently identify … such delegations of authority, police the outer statutory [and constitutional] boundaries of those delegations, and ensure that agencies exercise their discretion consistent with” the Administrative Procedure Act (“APA”), i.e., ensure that the agency’s exercise of delegated discretion to make policy or find facts is not “arbitrary or capricious” and (where applicable) is supported by “substantial evidence.” That is almost indistinguishable from the Chevron regime; the only difference is that silence and ambiguity no longer mark a delegation of authority to the agency.
Still, agency views may be relevant. Drawing on the pre-Chevron landmark Skidmore v. Swift & Co., the Supreme Court instructed that courts “may … seek aid from the interpretations of [the agencies] responsible for implementing particular statutes.” Agency interpretations “issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning,” as will be agency interpretations “to the extent [they] rest[] on factual premises within the agency’s expertise.”
Without the shortcut of silence or ambiguity, however, how are courts now to discern whether a statute delegates the decision to the agency? Loper Bright gives some guidance without providing a comprehensive rulebook. Some statutes “expressly delegate to an agency the authority to give meaning to a particular statutory term,” e.g., when a statute says, “as defined by regulations which the Secretary shall promulgate.” Other statutes “empower an agency … to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as ‘appropriate’ or ‘reasonable.’” And, the Court suggested, “fact-bound” or “mixed” determinations may be delegated to the agency, even when they explicate the statute’s meaning, as when an agency must decide whether newsboys are “employees” or a certain coal-burning railroad is a coal “producer.” In other words, one might read Loper Bright to mean that whereas statutory ambiguity is unintentional and thus for the courts to resolve, statutory vagueness indicates an intentional delegation of policymaking to the agency.
Ultimately, Loper Bright shifts (or widens) the battlefield from whether the statute is clear or ambiguous, to whether the statute delegates the decision to the agency. The arguments that litigants will want to make under Loper Bright’s new threshold question—grounded in all the traditional tools of statutory interpretation—will generally look quite similar to the arguments that litigants made under Chevron’s old threshold question.
Finally, we note three significant ancillary issues raised by Loper Bright.
First, what remains of the “major questions” doctrine, which has sometimes been understood as a limitation on Chevron deference? As recently formulated by the Supreme Court in West Virginia v. EPA, however, the doctrine is not about how to review agency interpretations but about the existence of agency authority: agencies lack the power to make “major policy decisions” absent “clear congressional authorization.” Therefore, the major-questions doctrine should continue to have force with respect to Loper Bright’s threshold question of whether the statute delegates the decision to the agency.
Second, what remains of cases previously decided in which the court deferred to the agency’s “reasonable” interpretation under Chevron? In Loper Bright, the Court declared that its decision “do[es] not call into question” those cases. But that does not necessarily mean the interpretations upheld in those cases will be binding. Even under Chevron (as elaborated in Brand X), those interpretations never were binding; by definition, the courts did not hold that they were the best interpretation, and the agencies were free to revise their interpretation. Therefore, after Loper Bright, it may be possible to revisit those interpretations, whether by the agency on its own or by a court in response to a new challenge—subject, presumably, to the usual time bars and the rules of preclusion. And the Supreme Court’s recent decision in Corner Post Inc. v. Board of Governors appears to expand the opportunity to bring such challenges.
And third, what about judicial review of agency interpretations that do not arise under the APA? Loper Bright rested heavily on the APA’s directive that “the reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions.” But the Clean Air Act, for example, displaces the APA with its own judicial-review provision, and that provision lacks the APA’s quoted language. See 42 U.S.C. § 7607(d)(9). Loper Bright arguably leaves this issue unresolved.