From "Deference" to "Respect"—The Real Import of Loper Bright

The headline result of Loper Bright Enterprise v. Raimando is that the Supreme Court has overturned Chevron v. NRDC and ended the practice of Chevron deference. While this is significant, count me among those who think the effects of the decision will be more modest than some portend. It may be that Loper Bright "places a tombstone on Chevron no one can miss," but the most important aspects of the decision lie in the weeds. As I suggested in February, the extent to which a given rule constrains agencies is more a function of what it does than how it is labeled.

The Chief's decision in Loper Bright reaffirms that judges must interpret statutes in the first instance and that courts are not obliged to follow an agency's interpretation of a statute unless that interpretation is convincing. In effect, a rule of deference is replaced with a rule of respect. That is, as was the case prior to Chevron, reviewing courts are required to listen to what agencies have to say, but must still exercise their independent judgment on what a statute means. As the Chief puts it repeatedly, the rule is that courts are to give agencies "due respect" rather than deference.

As the Chief Justice explains, the basic understanding, as explained by Alexander Hamilton in Federalist 78, was that "'the interpretation of the laws' would be 'the proper and peculiar province of the courts." At the same time, "the Court also recognized from the outset . . . that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes." This formulation—the exercise of independent judgment while according "due respect" to the executive branch is repeated throughout the opinion.

The Chief Justice also explains that "respect" is a far cry from deference.

"Respect," though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge "certainly would not be bound to adopt the construction given by the head of a department." . . . Otherwise, judicial judgment would not be independent at all. As Justice Story put it, "in cases where [a court's] own judgment . . . differ[ed] from that of other high functionaries," the court was "not at liberty to surrender, or to waive it."

In explaining what this means in practice, the Chief points to the Skidmore formulation, which includes consideration of an agency's expertise and experience, and the thoroughness of the agency's consideration. So agency expertise still matters, but it does not offer agencies a trump card when statutory language is difficult to parse or somewhat unclear.

delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise. The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch.

(And note there's that "due respect" formulation again.)

The opinion also notes that a longstanding agency interpretation, or one offered contemporaneous with a statute's adoption, is likely deserving of more weight than one arrived at much later. This should not surprise given the Chief Justice's repeated concern for what I've characterized as "pouring new wine out of old bottles." Agencies fulfill their obligation as part of the executive branch by carrying out Congress's instructions, not by deciding on a preferred (or White-House-dictated) course of action and only then scouring statutes for potential sources of legal authority.

This emphasis on giving agencies "due respect" rather than deference effectively restores judicial review of agency action to what it was prior to Chevron, with one important caveat. From the enactment of the Administrative Procedure Act through the creation of the Chevron doctrine (which, to be clear, occurred well after the decision), agencies had ample authority to implement federal regulatory statutes and were not particularly hampered by judicial review. This shows that deference is not necessary for agencies to be able to regulate. What will be different after Loper Bright will not be the lack of deference so much as the background approach to statutory interpretation adopted by federal courts. Pre-Chevron courts often embraced broad purposivist interpretations of federal statutes. These days, not so much. Statutory interpretation is more textualist, and more constrained, in the 2020s than it was in the 1970s and 1980s.

The Loper Bright opinion also evinces a concern about the nature and scope of delegation that was often absent in late-20th century judicial review of agency action. As the Chief Justice writes: "At best, our intricate Chevron doctrine has been nothing more than a distraction from the question that matters: Does the statute authorize the challenged agency action?" In this sense, the decision is consistent with what I've called the Delegation Doctrine.

Courts must respect Congress's decision to delegate authority to regulatory agencies, the Chief Justice notes, while stressing that it is also for courts to "fix the boundaries of [the]delegated authority." Further, unlike under more permissive applications of Chevron, such delegations are not to be presumed. Ambiguities and gaps, standing alone, are not to be presumed to delegate much of anything. Congress delegates what it delegates, and the failure to delegate is just that, a failure delegate. (In effect, the rest is silence.) Likewise, while it is possible a statutory gap or ambiguity was meant to leave room for an agency to operate, it may also be nothing more than poor drafting. While the former may entail some element of delegation, the latter does not.

Going forward, courts will continue to uphold reasonable agency interpretations of regulatory statutes, particularly when the subject matter is technical or complex, and agencies will still exercise broad swaths of policy discretion,  as the Loper Bright opinion expressly contemplates. Yet agencies will have to spend more time considering and showing how their desired approach to a given statute best conforms to the relevant text and will be less able to alter or reverse long-standing statutory interpretations without going back to Congress. Where statutes have been on the books for decades without meaningful amendment or revision, this will make it more difficult for agencies to adjust to changing circumstances. The big question will thus be whether Congress gets the message and responds with more frequent legislating (something about which Chris Walker and I have some thoughts).

My bottom line on Loper Bright is that the shift from deference to respect is less a revolution than a modest course correction. This decision, standing alone, will not tame the administrative state, but it may give Congress greater incentive to revisit existing statutory authorities and ensure that agencies have the authority they need to do the things Congress would like them to do.