At the end of May, I filed an amicus curiae brief on behalf of the U.S. Chamber of Commerce in response to the en banc Federal Circuit’s request for supplemental briefing on how Loper Bright affects statutory interpretation and delegation in a pending case, United States v. Lesko. The Chamber took no position on the merits of the case, and instead set forth a framework for understanding statutory interpretation and delegation after Loper Bright.

I always hesitate to mix the academic and lawyer hats. But I think many readers of the blog might find the brief’s post-Loper Bright framework helpful. The brief is here. Here is the summary of argument:

Last Term, in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court decisively rejected Chevron deference. Under that doctrine, courts were required to defer to a federal agency’s interpretation of ambiguous statutory language so long as that interpretation was “reasonable.” Chevron v. NRDC, 467 U.S. 837, 842–43 (1984). Now, courts must exercise their independent judgment when it comes to the meaning of statutes that govern federal agencies. That means courts must conduct de novo review and use all of the traditional tools of statutory interpretation to arrive at the “best” reading of the statute.

To be sure, the best reading of the statute could be that Congress authorized the agency to exercise a degree of policymaking discretion. Loper Bright recognized two categories of such delegations of authority: (1) when Congress specifically and expressly instructs the agency to define or give meaning to a statutory term; and (2) when Congress grants the agency general rulemaking authority, and the agency “fills up the details” of a statutory scheme or regulates subject to the limits imposed by a statutory term that leaves the agency with flexibility, such as “appropriate” or “reasonable.”

When a reviewing court concludes that the best reading of the statute is that Congress has delegated policymaking authority to an agency, the court must still ensure that the delegation is consistent with the Constitution, that the agency’s policymaking does not exceed the boundaries of the statutory delegation, and that the agency’s policymaking complies with the reasoned-decisionmaking requirements of the APA.

In terms of how this Court should interpret the statutory phrase “officially ordered or approved” at issue in this case, the answer is clear from Loper Bright: the Court must exercise its independent judgment to arrive at the best interpretation of the statute.[1] That entails using all of the tools of statutory interpretation. This is not a case where Congress has delegated policymaking discretion to the agency. Instead, determining the meaning of “officially ordered or approved” is a matter of ordinary statutory interpretation that requires this Court to exercise its independent judgment under Loper Bright.

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          [1] Amicus takes no position on the meaning of the specific statutory phrase “officially ordered or approved.” Nor does amicus take a position on any potentially binding circuit precedent at issue in this case regarding that question, or whether the Federal Circuit en banc should reconsider any such precedent.

And here is the table of contents:

I. Loper Bright Requires Courts To Exercise Independent Judgment When Interpreting Statutes.

II. Loper Bright Cabins The Degree Of Discretion Federal Agencies Have For Policymaking.

A. Congress Can Specifically Delegate Authority To Agencies To Define Statutory Terms.

B. When Congress Grants General Rulemaking Authority, Agencies Can Fill Up Details And Regulate Subject To The Limits Of Flexible Terms.

III. Loper Bright Reaffirms Existing Guardrails On Agency Policymaking.

A. The APA and Loper Bright Require Courts To Fix The Boundaries Of Statutory Delegations.

B. The Constitution Requires Courts To Rein In Excessive Statutory Delegations.

C. The APA Requires Courts To Ensure That Agencies Have Engaged In Reasoned Decisionmaking.

IV. This Court Should Exercise Its Independent Judgment To Determine The Best Meaning Of The Statutory Phrase “Officially Ordered Or Approved.”