For the past year or so, I’ve been working on a project for the Administrative Conference of the United States on best practices for drafting regulatory preambles in light of recent developments in judicial review of agency action. The draft report is now available.

In preparing the report, I interviewed nineteen current and former agency employees (all career) with experience writing the explanations that accompany agency rules. Among other things, I asked those rule drafters about how the demise of Chevron affected their agency’s approach to regulatory preambles. This post summarizes the responses to that question. (The views expressed here and in the draft report do not represent those of ACUS or the federal government.)

First, rule drafters fairly uniformly reported that they had ceased relying on Chevron years prior to its formal overruling. Instead, rule drafters had long felt it necessary to defend what the agency believed to be the best interpretation of the statute, invoking Chevron deference in the alternative if at all.

As far as what the move to a “best interpretation” world has meant in practice, the agency rule drafters I spoke with revealed a nuanced picture. Some of the rule drafters (who were nearly all lawyers) expressed the view that the demise of Chevron did affect how they discussed issues with agency policymakers. They were less likely to present statutory interpretation questions as involving a menu of options from which policy staff could choose. They were more likely to explain that the best interpretation of the statute simply wouldn’t support a particular result. In this respect, rule drafters echoed what former EPA General Counsel E. Donald Elliott wrote about Chevron, but in reverse: whereas Chevron empowered agency policy staff, Loper Bright increases the voice of lawyers.

At the same time, rule drafters by and large denied that Loper Bright represented a true sea change. For one, especially in the cases that would have formerly been governed by Chevron step two, an agency may often retain the ability to make a reasonable case for multiple different interpretations being the “best interpretation.” Thus, Loper Bright does not necessarily or inevitably put agencies in a straitjacket when it comes to contestable issues of statutory interpretation.

In addition, a number of rule drafters were of the opinion that their agency continued to possess delegated discretionary authority over many matters. Indeed, some rule drafters were completely unbothered by Loper Bright because they believed their agency was almost always operating pursuant to a relatively clear delegation of authority over the matter in question. Others stressed that, for many rules, their agency had a long track record of exercising policy-style discretion to make incremental adjustments in particular domains, and they didn’t see that changing because of Loper Bright. My own sense is that there’s interesting empirical work to be done comparing Loper Bright’s impact on different agencies.

With respect to whether an agency has delegated discretionary authority post Loper Bright, multiple rule drafters reported that they felt it was increasingly important to identify specific delegations of targeted authority as opposed to relying on a more general grant of power to issue rules in furtherance of the relevant statute. The importance of that distinction is defended in a recent article by Kristin Hickman and Amy Wildermuth. It remains to be seen whether courts will find it dispositive or merely relevant.

I also spoke to rule drafters about how best to present the agency’s view on interpretive issues over which courts will now exercise independent judgment. Here, although rule drafters generally understood that their agency needed to lead with textualism’s traditional tools, many rule drafters thought that agencies should continue to explain why their interpretations made good sense as a policy matter, though drafters understood “policy” as encompassing a variety of different considerations. For example, rule drafters thought it was often appropriate to explain why the agency’s interpretation was workable, why it cohered with the broader structure and purpose of the statute, and why it furthered legitimate public aims.

Rule drafters differed somewhat on whether, in making the above case, it made sense to think in terms of Skidmore’s factors or to reference Loper Bright’s occasional nods toward agencies’ expertise. For some, the point was simply that courts do not want to issue interpretations that are unworkable or that don’t make sense in terms of the overall statutory scheme. A rule’s preamble was the opportunity for the agency to make its fullest case that its preferred interpretation does.

Finally, the rule drafters I spoke with viewed maintaining an agency’s interpretive consistency as an important virtue, separate and apart from any advantage it might give the agency in litigation. Several rule drafters stated that they sought to maintain interpretive consistency unless there was, as one rule drafter put it, a “strong justification” to depart from a past position. Others acknowledged that, apart from being a virtue on its own, maintaining consistency could help the agency when it gets to litigation. Again, opinions differed on whether it made sense for agencies to cite Skidmore or to speak in terms of the Skidmore factors involving longstandingness, consistency, and contemporaneity, but there was general consensus that the current judicial review environment made it often advantageous to emphasize the agency’s consistency across time.

There’s more in the draft report—on Loper Bright and also on the major questions doctrine and various aspects of arbitrary-and-capricious review. It remains a work in progress, and I welcome any comments.