Notice & Comment

Implied Delegations After Loper, by Adrian Vermeule

Loper Bright Enterprises v. Raimondo recognizes that Congress may delegate to agencies the authority to exercise discretion in a certain domain, as I have argued. A further question, of both doctrinal and practical significance, is whether those delegations must be express, or instead can also be implied. In an excellent recent online seminar, my esteemed co-author Michael Herz raised this question and, although offering all due caution about the relevant uncertainties, tentatively opined that Loper delegations may have to be express. (With apologies to Josh Blackman, the usage of “Loper” as shorthand is already widespread, and I will follow suit).

My equally tentative and uncertain opinion is that Loper delegations need not be express, although of course they may be. The relevant passages from the Court’s opinion do not seem to require an express delegation. As the Court said: 

“In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes expressly delegate to an agency the authority to give meaning to a particular term. Others empower an agency to prescribe rules to ‘fill up the details’ of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as appropriate’ or ‘reasonable. When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits” (emphasis added).

The natural reading of this passage, it seems to me, is that the Court mentions express delegations, such as the authority to define a statutory term, merely as one illustrative example of delegation. But the Court does not say that all delegations must be express, and does not even purport to offer an exhaustive list of the varied types of statutory delegations. (As the Court likes to remind us, we are not to read judicial opinions as though they are comprehensive statutes). Some of the Court’s other examples are not easy to describe as examples of express delegation, or at least could just as well be effected by implied as well as express delegation. Consider the power to “fill up the details” of a statutory scheme, a power that in any given case might be discerned not from express delegation, but simply from Congress’ leaving essential details incompletely specified. The whole thrust of the Court’s approach in Loper is that the best reading is the best reading, and that applies whether the relevant delegation is express or implied. To be sure, the Court rejected the Chevron idea that statutory gaps and ambiguities should be generally presumed to represent implied delegations, at wholesale, but that does not mean that an implied delegation cannot be found at retail, in a particular case.

This reading is reinforced by a background principle of legal interpretation and a point of administrative law doctrine. The background interpretive principle, which appears in the interpretation of statutescontracts, and treaties, posits that absent some special rule of clear statement, legal instruments may either speak expressly or by implication,[1] so long as the ordinary meaning of the instrument, all things considered, is best read to so indicate. Ordinarily, what a legislature may do explicitly, it may do implicitly. The foundation of that principle is sheer common sense. After all, in every other sort of human communication, we often understand by implication something that has not been expressly said. (Indeed, in any normal communicative context, it is impossible that everything should be expressly said). Why should legal instruments be different, absent some special policy governing a particular legal question?

The point of administrative law doctrine is that to read Loper to require that all delegations be express would threaten to swallow up the major questions doctrine, which requires (roughly speaking) that delegations must be express when, but only when, they authorize the agency to decide a question of major economic or political significance. In other words, to read Loper as erecting a heretofore unknown global clear statement rule against all delegated authority, one requiring that all delegations (not just major delegations) must be express, would go even farther than the Court has gone with the major questions doctrine. This seems an implausible reading, at least until the Justices inform us otherwise. After all, the discussion in Loper itself seemed to indicate that the major questions doctrine remains part of the law, a point that would have been unnecessary if that doctrine had been subsumed in an even broader rule that all delegation, of whatever scope and importance, must be clearly stated. I conclude — under a horizon of continuing uncertainty, while the precise contours of Loper delegation are still to be worked out — that even under Loper, delegation of authority may be implied as well as express.

Adrian Vermeule is the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School, and a co-editor of The New Digest.

[1] Depending on the context, on the presence or absence of other competing interpretive canons, and on the methodological commitments of the author, cases and treatises vary on the question whether such implication must be “necessary” or may simply be “fair.” Probably there is no general answer; it depends on the nature of the legal problem at hand. But this secondary issue is irrelevant to my main question here, which is simply whether implied delegations can be recognized at all.

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