Today’s Ad Law Reading Room brings you not one, not two, but three entries (don’t worry, they are short, at least by law review standards). Back in October, the George Mason Law Review held a symposium on the future of Chevron. Three of the included articles tackled what judicial review of agency action would (or should) look like in a post-Chevron world. In light of the recent arguments in Loper Bright and Relentless, and the fact that all are now available on SSRN, I thought I would highlight them here.
The first is “Lower Courts After Loper Bright,” by Lisa Schultz Bressman. The second is “Chevron, De Novo: Delegation, Not Deference,” by John F. Duffy, aspects of which Duffy has written about in these pages. The third is “Four Futures of Chevron Deference,” by Daniel E. Walters.
Here is Bressman’s abstract:
In my Symposium contribution, I offer a prediction: If Loper Bright Enterprises v. Raimondo overrules or ousts Chevron, the decision may have less practical effect in the lower courts than we might expect. In most cases, courts will continue to ask whether the relevant statutory language has a clear meaning that precludes the agency’s interpretation or requires another, using the same interpretive tools and methodologies that they have before. When courts find no such meaning, they will ask whether the agency’s interpretation should prevail in basically the same manner as they always have. The more specialized an interpretation, the more likely the court will be to agree with it. Although courts will not always give controlling weight to the agency’s interpretation, they are still likely to do so when it matters most: when the interpretive dispute amounts to a policy disagreement. In such cases, judges may feel conflicted substituting their judgment for that of the agency, as both Chevron and State Farm have long warned against. They may begin treating agency interpretations as policy decisions to which State Farm applies rather than deciding the underlying questions themselves. Courts did not have to think much about the choice between Chevron and State Farm while both pointed in the direction of deference, and they may have defaulted to Chevron whenever statutory language was involved. After Loper Bright, courts will feel the weight of this choice; it may be the difference between de novo review and arbitrariness review; independent judicial judgement and judicial deference; judicial responsibility and agency authority. If courts respond by using State Farm, they will moderate the effect of Loper Bright for any number of agency interpretations to which Chevron formerly applied.
Here is Duffy’s:
Chevron v. NRDC is frequently discussed in general terms for the deference doctrine originating in the opinion but far less frequently analyzed in terms of the specifics of the case, with attention to the relevant statutes, the regulations being reviewed, the arguments that the parties presented, and the arguments they failed to present. As the Supreme Court now considers whether to “overrule” the case, it is highly important to consider how the case should properly be analyzed if the parties had presented to the Court the complete set of statutes governing judicial review. Such a “de novo” look at Chevron would produce the same outcome (a sustaining of the legality of the agency’s regulations) but with radically different reasoning, beginning with a recognition that a reviewing court must “decide” all relevant questions of law, including statutory questions. Yet in deciding all relevant questions of law, reviewing courts must frequently confront, as in Chevron itself, the crucial question of how much delegated power the agency possesses. Reviewing courts should focus attention on that statutory issue—the extent of delegation—and should eschew the pointless project of spinning ever more elaborate judicially-fabricated rules for granting and denying deference to agency legal interpretations. Much of that reorientation from deference to delegation was already accomplished in United States v. Mead. In the pending Loper Bright v. Raimondo and Relentless v. Department of Commerce cases, the Court should complete the reorientation, disavow the analysis in Chevron, read the relevant statutes de novo, and determine without deference to the agency the amount of power delegated to the agency. That approach has many benefits, including that it would (i) provide an appropriate, rigorous, and broadly applicable approach for addressing the varied agency delegations authorized by Congress; (ii) respect the Administrative Procedure Act’s comprehensive framework governing judicial review; and (iii) help to decide the Loper Bright and Relentless cases by forcing courts to focus on the unusual and narrow delegation of power in the relevant statute.
And here is Walters’:
In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s policymaking utility over the long haul, given certain institutional constraints that the Supreme Court justices must operate under. The model produces four possible futures of Chevron deference, with each possible future’s probability depending on how certain the Court is about the future allyship or opposition of the executive branch.
The essay unfolds as follows. Part I provides a brief political history of Chevron deference. Recent work in this vein has helped us to appreciate much better that the rise and decline of Chevron deference was politically contingent. Part II builds on this insight, formalizing a simple model that can tell us under what political conditions something like Chevron deference is likely to arise, as well as when it is likely to fade or disappear completely. The model I offer differs from other accounts that proclaim Chevron’s “inevitability” in its parsimonious focus on political circumstance and preference maximization, as well as in its forthright acknowledgment that Chevron may very well not be inevitable in any given moment if the right political circumstances for its erosion exist. Part III then engages with political science literature to argue that, while political conditions do not favor Chevron deference currently, in the long run they are almost certain to. Indeed, I will argue that regime theory teaches us that the conditions favoring Chevron deference are a natural default for our political system. Thus, if the model bears any relationship to the reality of what is really driving the Court’s construction of deference doctrines, we likely have not seen the last of Chevron deference.
Together, the three contributions raise the possibility that, even if the Court gets rid of Chevron, the impact on judicial review of agency action may not be quite as dramatic as often envisioned (or feared). But the articles otherwise display fascinatingly different perspectives. Building on her forthcoming paper entitled “The Ordinary Questions Doctrine,” Bressman predicts that courts will continue to be deferential when interpretive disputes really reflect policy disagreements, and she provides indicia for identifying such cases. Duffy, unlike Bressman, would welcome the Supreme Court’s disavowal of Chevron and proposes an alternative that would more closely focus on the authority delegated to the agency as a textual matter. But that alternative, too, would allow courts to identify circumstances in which agencies maintain discretion and where policy-style deference would continue to rule. Finally, Walters brings a positive political theory approach to bear, arguing that political dynamics will work to “resurrect” Chevron-like deference should Chevron itself be formally overruled. All of the pieces are well worth reading, and considered in combination they provide an excellent window through which to view the possible post-Chevron terrain.
The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.