With Chevron gone, there’s a deepening fracture in the standards of judicial review over executive branch actions. On one hand, courts police major agency policies with aggressive skepticism through the major questions doctrine (MQD). On the other hand, when executive actions evade the Administrative Procedure Act (APA) and face non-statutory ultra vires review, some jurists advocate for an uncritical, deferential baseline that treats statutory silence as a blank check. We argue that this emerging dichotomy—swinging between anti-deference and uber-deference—is indefensible, detached from historical first principles, and fundamentally at odds with the post-Loper Bright understanding of the separation of powers.

If an agency asserts statutory authority in a mine-run case, Loper Bright tells us the agency receives no deference for its interpretation of its power. In this situation, where Chevron used to reign, it’s the court’s duty “to say what the law is.”  Save for whatever persuasive power the agency may muster under Skidmore, this essentially means de novo construction.

But West Virginia v. EPA tells us that if the agency acts on a matter of vast “economic and political significance”—especially by acting under vague statutory language in an unprecedented way—it must point to clear congressional authorization. This doctrine, the MQD, imposes a clear statement rule: the agency facing a facially valid MQD challenge works at a disadvantage, something akin to “reverse deference” or skepticism from the jump.

On the flip side, however, are executive actions that fall outside of the judicial review provisions of the APA, perhaps, among other possibilities, because the defendant is not an “agency” for purposes of the APA. These decisions are reviewable through non-statutory or ultra vires review. This form of relief is ancient, a “creation of courts of equity” reflecting “a long history of judicial review of illegal executive action, tracing back to England.”

The APA was a significant change from prior practice in many respects, but not in standards of judicial review. Quite the contrary, the judicial review provisions were thought to be a “general restatement of the principles of judicial review embodied in many statutes and judicial decisions.” Although most challenges to Executive Branch actions after the APA fit into its framework, non-statutory review remained available for those that fell outside.

Especially with the Supreme Court having “place[d] a tombstone on Chevron” through Loper Bright, and MQD review creating a default of skepticism in an important class of cases, we believe courts should be careful to avoid making the ultra vires standard more favorable to the government than it ought to be. This is because an overly favorable ultra vires standard would yield vastly different standards of review for government action depending upon the availability of APA review.

The problem can be illustrated through comparing West Virginia with Justice Alito’s dissent in United States Postal Service v. California. The former case arose when EPA issued a new rule under an old statute, concluding that the “best system of emission reduction” for existing coal-fired power plants was a “system” that required such facilities to either reduce their production of electricity or subsidize increased production from natural gas and renewable sources. Broad, indeterminate statute plus regulation under (and implicitly interpreting the meaning of) that statute equals a classic Chevron set-up, right? Not so, according to the Supreme Court. Through its embrace of the MQD, the Supreme Court in West Virginia said, in essence, that statutory silence or ambiguity on an issue should not always give rise to a presumption of delegated authority; instead, the presumption should point in the opposite direction, at least in “extraordinary cases,” wherein “the history and the breadth of the authority that [the agency] has asserted, and the economic and political significance of that assertion, provide a reason to hesitate before concluding that Congress meant to confer such authority” (internal quotation marks omitted).

Fast forwarding a few years and, after Chevron’s burial, Justice Alito, in dissent, offered a radically different take on a scenario that, again, bore many of the basic hallmarks of a deference dilemma. In a case concerning the authority of the USPS to impose new restrictions on mail-in ballots in federal elections, the majority declined to stay a district-court injunction that barred implementation of the final USPS rule. Here is how Justice Alito characterized the basic situation: “[T]he plaintiff States’ statutory claim is based on a contestable reading of a broadly drawn statute.” According to Justice Alito, the majority erred in declining to rule for the government because the government, in such circumstances, need show only that the agency’s interpretation of the statute is not “patently a misconstruction.” As Justice Alito noted, that’s a low bar to clear.

The dissent’s approach sounds reminiscent of a Chevron analysis. Of course, Chevron has been interred, so the deference to the agency’s interpretation of law had to be tied to some other hook. Justice Alito latched onto the fact that the plaintiffs had advanced an ultra vires claim—a product of the USPS’s exclusion from the APA.

Now the dissenting opinion is just that: a dissent. It is not the governing legal rule. But if it were to be adopted, we would find ourselves with an odd jurisprudence. The pendulum swings between strong skepticism of agency power under MQD and strong deference to agency power if outside the APA. And, in cases like the USPS Ballot case, we might find both approaches at least arguably implicated at the same time.

If there is a justification for the disparate treatment, it has not yet been stated. And we are skeptical that a compelling theory exists. To start, there is little reason to think that basis for the cause of action triggers different levels of deference on questions of law. Indeed, Loper Bright emphasized that pre-APA review did not defer to agency interpretations of law (hence the citations to Marbury v. Madison, among other judicial-power stalwarts). That sort of de novo review of law should continue apace today, either codified in the APA or left alone outside of it.

To be sure, judicial decisions have sometimes described non-statutory review as a “Hail Mary” pass, signifying an uphill battle for the challengers. In this view, courts are reluctant to police the boundaries of agency authority outside of APA review. As ably explained elsewhere, there are reasons to doubt that this heightened standard applies in the absence of an express statutory preclusion of review. Simply falling outside of the APA’s scope isn’t enough. And when one reads the original judicial decisions describing the scope of ultra vires review in their entirety, and not just the partial phrases cherry-picked by DOJ lawyers, deference is hardly the theme. Any other rule would be hard to square with Loper Bright’s summary of the history of judicial (non-)deference to agencies on questions of law.

Although Justice Alito did not add as much, it bears mentioning that the USPS acted on the direction of a presidential Executive Order. Indeed, many non-statutory review cases involve the President, who falls outside of typical APA review. One could certainly imagine a regime in which presidential decisions receive uber deference while those of other components of the Executive Branch do not. But if courts interpret this review as exceedingly deferential, there emerges a risk that presidents may strategically elect to use Executive Orders in lieu of traditional agency rulemaking to obtain the benefit of friendly judicial review.

Again, Loper Bright’s understanding of the separation of powers cuts against switching deference on legal questions based on where in the Executive Branch the interpretation arose, as the judicial power remains the same. And this argument for presidential deference becomes considerably weaker in the new age of strong presidential oversight—put on steroids after Slaughter. If independent agencies are no longer truly independent because Article II vests the whole of the Executive Power in the President, as Slaughter suggests, then the political accountability argument for different levels of deference across the Executive Branch loses its purchase.

Even without these reasons for doubting the continuing viability of deference to agency legal interpretations post-Loper Bright, we question the wisdom of swinging between MQD’s anti-deference and ultra vires’ uber-deference. Change a few minor details about an agency’s decision, and the agency’s authority may either evaporate or spring into existence when looked at by a court. That unpredictability hardly furthers a stable rule of law.

We’re unconvinced that this odd dichotomy flows from the APA, the Constitution, or Supreme Court precedent. And we remain particularly skeptical of the idea that ultra vires review requires uber-deference to agency or any other executive-branch interpretations of the law. Even de novo review seems compatible with the sin described by ultra vires action—acting beyond the scope of the law, whether by a meter or a mile.

Nicholas Fromherz is an independent consultant and Adjunct Professor of Law at Lewis & Clark Law School.

Joseph Mead is Principal and Deputy General Counsel at Washington Litigation Group.