Last month, the Supreme Court granted cert in Loper Bright Enterprises v. Raimondo. Though the case hasn’t yet been set for oral argument, it is already being described as a potential death blow to the administrative state. That’s in part because of the question it asks: whether the Court should overrule (or significantly “clarify”) Chevron USA, Inc. v. National Resources Defense Council.
But even if Chevron is overruled, the result may be less consequential than some hope. According to at least one prominent scholar, there may be no way to restore a pre-Chevron world. The trend toward greater judicial deference may be unstoppable. And we may be too far down the road to turn back from the modern administrative state.
To be sure, that is not the prevailing view. Most observers think Loper could be quite significant, despite its quotidian origins. The case arose out of a dispute over national fisheries. Almost a decade ago, the National Marine Fisheries Service passed a rule requiring certain fishing boats to pay the salaries of on-board federal monitors. A group of fishermen sued to block the rule. But the D.C. Circuit concluded the rule was an acceptable interpretation of the relevant statute. The court conceded that the statute required payment only in a few circumstances—and this wasn’t one of them. But the statute didn’t explicitly forbid the Service from requiring payment in other circumstances. That silence left the statute ambiguous. And given the ambiguity, the court deferred to the agency’s view.
As a matter of pure statutory interpretation, that conclusion was novel and debatable. So it was no great surprise when the Supreme Court took the case. The surprise came, however, when the Court picked its question for review. The fishermen’s petition offered the Court two questions: one about how to read the statute, the other about Chevron. And the Court accepted only the second one. The Court, in other words, had no interest in mundane questions of fishery law. It was interested only in the big question—whether Chevron should be curtailed or overruled.
That is indeed a big question. For decades, Chevron has been one of the most controversial decisions in all of administrative law (if not all law). Its core holding is that when a statute is ambiguous, the agency charged with administering the statute gets the first crack at interpreting it. And if the agency’s interpretation is “reasonable,” courts should defer—even if they would have read the statute differently on their own.
That approach is sometimes called the “Chevron two-step.” Courts have defended the two-step as a way of respecting legislative will. Congress chose to give interpretive authority to an agency. And Congress’s choice, once embodied in a statute, is the law. So why shouldn’t courts respect that choice?
But others have seen the matter differently. Critics have characterized the two-step not as respect for congressional authority, but as abdication of judicial responsibility. They have argued that Article III vests all judicial power in courts. Judicial power includes the power to “say what the law is.” Courts therefore have a duty to interpret statutes independently. In every case, they have to give a statute its best reading. They cannot defer to an agency interpretation just because that interpretation is “reasonable.”
Some of those critics now see Loper as an opportunity. They have long blamed Chevron for distorting the constitutional order. They think excessive deference disempowers Congress and the judiciary. And in those branches’ place, Chevron elevates the executive branch (or, less charitably, unelected bureaucrats). But if Chevron were overruled, the other two branches would have to resume their traditional roles. Congress would have to legislate more often and with more specificity. And courts would have to interpret legislation using traditional legal tools. They would, in short, have to return to the classical model of lawmaking and judging.
But that view might be wrong. The contrary view was laid out nearly seven years ago, by Harvard professor Adrian Vermeule. In Law’s Abnegation, Vermeule argued that deference was not the result a single case, or even a series of cases. Instead, it arose out of broader economic, political, and legal forces. In the modern era, Congress had confronted big, complex, fast-moving problems. Those problems couldn’t be dealt with through traditional lawmaking procedures. So rather than do nothing, Congress gave more power to agencies. It instructed agencies to develop policy through quicker, more precise methods. And courts, recognizing those delegations as law, deferred to agency policymaking. The result was the modern administrative state.
Notice what this description implies about deference. It suggests that deference is not only proper, but inevitable. If delegation is law, then courts have no choice but to defer. And what’s more, this kind of deference is self-reinforcing. When courts defer, they create legal doctrines to justify deference. Those doctrines then bleed into other areas and justify more deference. A feedback loop sets in, and the law spins inexorably toward administrative supremacy.
If this view is right, Loper may be less significant than it first appears. Just as one decision did not create the administrative state, one decision cannot end it. Even if the Court pares back deference in Loper, it will still be driven to defer more and more to agency policymaking. The legal process will demand it.
Some may shudder at that possibility. But whether or not we see it as a bad thing, it does seem to match the long-term trend. Over time, courts do seem to defer to agencies more and more. And if that trend holds, it means that Loper may be nothing but a speed bump. Even if the Court overrules Chevron in fact, we will never be free of Chevron in spirit. We will take one step back, two steps forward in an endless recursion toward the inevitable administrative state.
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