Notice & Comment

Supreme Court Confirms Judicial Supremacy Over Democracy and Expertise, by Joshua Sarnoff

In Loper Bright Enterprises v. Raimondo, the conservative majority of the Supreme Court finally made good on its threat to overturn the Court’s Chevron doctrine.  Since 1984, Chevron has required courts to defer to agency interpretations only after evaluating and passing three steps of analysis: (a) at “Step Zero” – by deciding that Congress has left ambiguities in a statute that (according to arcane rules) the courts treat as an implied delegation to an administrative agency to decide what the statute means in the various contexts that the agency has issued its interpretation; (b) “at Step One” – so long as the interpretation was not clearly wrong (as courts will uphold agency interpretations if clearly right); and (c) at “Step Two” – if the interpretation was not clearly wrong or clearly right, so long as the interpretation was not “impermissible,” which has been interpreted to mean not “unreasonable.”  (Justice Kagan and the liberal minority in dissent describe this standard as an interpretation “within the bounds of reason­ableness.”) By manipulating all of these three steps, courts have frequently overruled agency interpretations of the statutory authority granted to them to issue regulations or make adjudicatory decisions across the entire spectrum of governance, e.g., the economy, health and welfare, benefits programs, telecommunications, etc.  Thus, generalist court judges have routinely overturned democratic (at least more democratic) judgments made by agency administrators statutorily charged by Congress with carrying out our laws (by applying their expertise) when making these kinds of interpretive judgments, which necessarily precede agency discretionary policy judgments and applications of the law to facts.

Loper Bright makes clear that judges need not and should not defer in these relatively limited circumstances, where they would have found the agency’s judgments “not unreasonable” but would have interpreted the law differently than the administrators.  (It is important to note that Congress and the Supreme Court have not imposed any official methodology on how courts or agencies are to make their interpretations, which would limit both administrative and judicial discretion.)  Although there are a few significant cases where this kind of “not unreasonable” agency interpretations have been found and have received judicial deference (including the 1984 Chevron USA, Inc. v. Natural Resources Defense Council, Inc. case that gave the Chevron doctrine its name), the importance of the Loper Bright decision is likely to be both less and more than it immediately appears.  

It is likely to be less, because without Chevron, courts must continue to apply the Skidmore deference standard to interpretations (as they had to do when Chevron Step Zero denied interpretive authority to agencies).  Under the 1944 Skidmore v. Swift & Co. case, courts should defer to an agency’s interpretation depending on the persuasive “strength” of the agency’s reasoning. As the Court in Loper Bright quoted from Skidmore: “‘[t]he weight of [an agency] judgment in a particular case’ … would ‘depend upon the thor­oughness evident in its consideration, the validity of its rea­soning, its consistency with earlier and later pronounce­ments, and all those factors which give it power to persuade, if lacking power to control.’”  (Leave aside that there is a logical flaw in this standard – you can defer to power or to position, but you cannot “defer” to the strength of reasoning, which either persuades or does not based on its correctness.)  Accordingly, Loper Bright is likely to have little formal, doctrinal effect, as it only changes those cases where courts would have found the agency interpretations of their statutes to be “not unreasonable” but also “not persuasive” under Skidmore.  Perhaps this is a larger category of decisions than past practice would suggest.  But more likely the formal judicial doctrine has made and will make little difference to the outcomes of such cases.

Rather, the significant difference is that the Court in Loper Bright has emphasized that it, not agencies, are the source of the law when the law is ambiguous or vague.  As the Court stated to justify its holding, “[t]he Framers [of the Constitution] also envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts.’”  And the Court repeated language stated long ago (1803) by Chief Justice Marshall in Marbury v. Madison, “‘it is emphatically the province and duty of the judicial department to say what the law is.’”  Thus, Loper Bright emphasizes judicial supremacy as a “law giver,” whenever the meaning of statutory provisions is contestable (which it almost always is), even when Congress impliedly delegates that interpretive authority to agencies.  It emphasizes that unelected and comparatively inexpert and uninformed judges should decide what Congress meant, rather than the appointed administrators with expertise and at least a pretense of democratic accountability.  Thus, rather than increasing democracy when rejecting expertise, the Court rejected both in Loper Bright.  And this attitudinal difference, by expressly removing any suggestion of “deference” to administrative agencies, may make a large difference in the future to deciding when “not unreasonable” interpretations are also “not persuasive.”  Further, it may induce agencies to rely more on retrospective adjudication to fill so-called “gaps” in statutory language rather than provide prospective guidance of its interpretations through rulemaking, as the concrete settings will invariably require some rule to apply.  As Justice Jackson relevantly noted in his dissent in Chenery II regarding the imputed power of agencies to choose to rely on such retroactive lawmaking, “[n]ow I realize fully what Mark Twain meant when he said, ‘The more you explain itthe more I don’t understand it.’”

In short, the Supreme Court has again arrogated power to the judiciary to decide how life in American is going to be regulated or not.  The Court has done so both on purportedly “originalist” understandings and purportedly functionalist assessments – that the current Chevron standard is “unworkable.”  “The defining feature of its framework is the identification of statutory ambiguity, which requires deference at the doc­trine’s second step. But the concept of ambiguity has al­ways evaded meaningful definition.”  We will have to see how “workable” will turn out to be the politicization of law through imposition of judicial preferences when interpreting statutes, by comparison to that of agency expertise and democratic accountability.  But the power grab for the judiciary that Loper Bright reflects should not get a pass by going unremarked or unnoticed.  And if this is where originalism leads (although it need not), it is time for us to change the Constitution (as any legislative effort to restrict such judicial discretion would likely be held by the current Supreme Court conservative majority to violate non-textual constitutional separation of powers limits or the non-delegation doctrine) and impose a new method of legal interpretation on our judiciary both for how to address inevitable legislative ambiguity and to assure that administrative expertise and democracy prevail over judicial policy-specifying supremacy.

Joshua Sarnoff is a Professor of Administrative Law at DePaul University College of Law.

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