Loper Bright and the Next Steps for Chevron Deference at the Supreme Court

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Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an assistant director of practice groups with The Federalist Society. Today, we're excited to host "Loper Bright and the Next Steps for Chevron Deference at the Supreme Court." We're joined today by Professors Nicholas Bagley, Christopher Walker, and Ilan Wurman.

 

Our moderator today is Eli Nachmany. Eli was most recently a law clerk to Judge Stephen Menashi of the Second Circuit. He graduated magna cum laude from Harvard Law School, where he was editor in chief of the Harvard Journal of Law and Public Policy. Prior to law school, he served as a speechwriter to the U.S. Secretary of the Interior and as a domestic policy aide in the White House Office of American Innovation. Eli received his BA summa cum laude from NYU with a degree in sports management. If you'd like to learn more about today's speakers, their full bios can be viewed on our website, fedsoc.org. After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many questions as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers and not The Federalist Society. With that, Eli, thank you very much for joining us today and the floor is yours.

 

Eli Nachmany:  Thank you, Sam, for that kind introduction. I appreciate it. Since the Supreme Court granted cert in Loper Bright Enterprises v. Raimondo, many in the administrative law world have wondered whether the Court will use Loper Bright to depart from its decades-old precedent in Chevron v. NRDC. The rule of Chevron has come to be understood as follows, in cases concerning ambiguous statutes that federal agencies have interpreted, federal courts are bound to defer to those agency interpretations so long as they are reasonable. Our conversation today will center on Chevron's future at the Supreme Court.

 

We have a terrific panel today of three leading academic lights in administrative law. You can read their full bios on the FedSoc website, but I'll introduce each one briefly. To start, we have Nicholas Bagley of the University of Michigan Law School. Professor Bagley is a Professor of Law at Michigan, where he specializes in administrative law and health law. Next, we have Chris Walker, also of the University of Michigan Law School. Professor Walker is also a Professor of Law at Michigan. His research focuses primarily on administrative law, regulation, and law and policy at the agency level. We also have Ilan Wurman of the Sandra Day O'Connor College of Law at Arizona State University. Professor Wurman is an Associate Professor of Law at ASU, where he teaches administrative law and constitutional law. I want to give everyone an opportunity to make opening remarks before we get into questions. So we'll go in alphabetical order here. Professor Bagley, you'll kick us off.

 

Prof. Nicholas Bagley:  Great. Well, thank you for the invitation. I'm really happy to be here. We're going to talk a lot about the ins and outs of Loper Bright, but I thought I'd use my comments to take a step back and situate the case in the broader context of the conservative legal movement's effort to limit the scope and reach of the administrative state. Part of the reason I want to do this is because I think in some ways Loper Bright's significance is, in the discourse, maybe a bit overstated. The anti-Chevron impulse that the petitioners are drawing on has already borne significant fruit. Partly that comes from older cases like Mead, but partly it comes from cases like the major questions or cases creating the major questions doctrine that we've seen in the past couple of terms. Less obviously, Chevron has really been indented by the relative unwillingness of courts to find ambiguity in agency statutes. So in a way, the case may not be that significant because Chevron may kind of have dwindled into, if close to irrelevance, whatever the Court may choose to do in its eventual decision.

 

But I do want to notice just the way that Loper Bright forms part of a broader campaign in the federal courts to curb the power of federal administrative agencies. You see this with the flirtation with the non-delegation doctrine. You see it with skepticism of independent agencies, most notably the decision about making the head of CFPB subject to executive control. You see skepticism of ALJs and Lucia and maybe this coming term in Jarkesy. You see an embrace of novel legal theories like the Fifth Circuit's claim that the CFPB, its financing scheme, violates the Constitution. You see it in arguably a rise of hard look review, whether we're talking about the Trump administration's decision to withdraw DACA or to allow the Department of Commerce to ask about citizenship and the census. More generally, you just see a mood of skepticism that the Supreme Court is bringing to agency cases. You don't just see it in the courts. You see it outside the courts, too. You see it in an embrace of legislative proposals like the Reigns Act that would add stiff procedural burdens to agency action, requirements for formal rulemaking, notice and comment provisions for guidance, explicit congressional approval for new rules, et cetera, et cetera.

 

So where does this push to circumscribe the authority of the administrative state come from? I see it arising from two very different sources. The first is a kind of constitution in exile idea, the idea that the federal administrative state is basically a gigantic constitutional mistake. Agencies violate the core principle of the separation of powers, and maybe you can't declare them all to be unconstitutional, but anything that curbs their authority is constitutionally virtuous, at least as a second-best matter. I don't find that account of the Constitution compelling, either as an historical matter or as a matter of constitutional text. Agencies are created not in the teeth of the separation of powers, but through the operation of the separation of powers. And what Congress can make, Congress can unmake. And that's all the Constitution requires.

 

Beyond that, the Necessary and Proper Clause gives Congress wide authority to delegate powers as needed to carry out its constitutional authority. In Loper Bright, you see that constitutional argument manifest in the idea that somehow a constitutional abdication for courts to defer to agencies, for courts not to say what the law is. As an original matter, that's just not so. In fact, the courts had very little to say about agency interpretation at the founding, believing generally that the implementation of the laws, including the interpretation that is necessarily bound up in the application of the laws, was primarily left to executive discretion. And by the same token, nothing in the text of the Constitution compels Chevron's abdication. Congress is free to delegate power to agencies to interpret their organic statutes, subject to a very weak constraint of the non-delegation doctrine.

 

And if Congress can delegate explicitly, then it's not a stretch to say that they can delegate implicitly. And Chevron just supplies a rule of thumb for when that implicit delegation has been made. Which is to say that there are these constitutional arguments lurking in the background, and maybe you find them compelling, lots of people do. But at a minimum, they are highly contested and provide a pretty contentious basis for rethinking a fundamental part of the administrative state. You don't usually do that where there's significant doubt about the wisdom or propriety of a previous decision. Which just leads me to think that the second big bucket of justifications for reevaluating Chevron deference is doing most of the work here. And that is not a view about what the Constitution does or doesn't require. It's a straight up policy view, an intuition that we'd be better off curbing the authority of the administrative state. The idea is, look, the federal administrative state, it's too big. It regulates too much with too little care. And if that's your view, then it seems to follow pretty naturally that if you can throw sand in the gears to make it harder for the administrative state to act, well, that's good. That's good because the administrative state is too big, and because if you throw sand in the gears, maybe you're going to liberate the private market.

 

And one way you can pretty effectively throw sand into the gears of an agency is by empowering courts to superintend and double check what it is agencies do. And the reason this works so well is, first, because sometimes agencies do stuff and they're challenged, and the agencies lose, usually in cases brought by regulated entities. But second, and I think more insidiously, agencies that fear losing in court, that can make them defensive and risk averse. It pushes them to bulletproof their actions, even in cases where doing so is not an especially good use of resources. So the kind of sand in the gears may have upsides and benefits. Maybe it makes agencies a little bit more careful, but it also serves more generally as a tax on agency capacity. Which brings me to Loper Bright. If you're just reading the headlines, maybe a tax on agency capacity to interpret an agency's own statute, maybe that tax is worth imposing. After all, Congress is riven, and with the rise of ideologically sorted parties, it can't really manage to do a whole lot, especially on the regulatory front. So we've got all these old statutes lying around. We've got lots of pressure on the Executive Branch to make use of them, at least when the White House has a matter of political urgency under consideration. So we've seen over the last three to four administrations, and stretching back to a lesser extent even further, we've seen aggressive action to try to use these older statutes to achieve politically salient ends. And when you see those cases arise, it's tempting to think that we ought to maybe push back on that Executive Branch opportunism. Maybe Chevron provides a tool to do that.

 

And so you see enough cases of high-profile things like the student loan cases or DACA or the eviction moratorium, the stuff that we endlessly write columns about and think about and talk about. And viewed from that perspective, the temptation to curb the authority of agencies to freelance, or perception that they may be freelancing, pretty strong. What I think that misses, and the thing that worries me about Loper Bright is that it misses the complexity and scope of the American administrative state and all that it does outside the limelight. So Loper Bright, right, is a case about boats, case about fisheries. But I'd venture to guess that lots of people on this call didn't even know that such a thing as the National Marine Fisheries Service even existed before the Loper Bright case came to our attention. The government does lots of stuff that we just don't hear that much about day to day. It runs Medicare and Medicaid, it buys airplanes, it oversees drug development, it cuts Social Security checks, it operates a patent system, collects taxes, it restores the Everglades, it manages the electrical grid. All of the stuff that government does, by and large, it benefits us when government does that stuff well, and we tend to suffer when government does that stuff poorly.

 

So you do have to ask yourself, for all these cases that are outside of the limelight, do you really want to be throwing sand into the gears? Do you really want to greenlight the federal courts to micromanage the day-to-day operations of the American administrative state? Because remember that most of these agency cases never make it to the Supreme Court. They never make a headline. It's the lower courts that have to decide whether an agency has properly interpreted some intricate provision about the operation of past reimbursement for Medicare Advantage plans. And when a case like that arises, I don't want some former prosecutor, some big firm lawyer, somebody who was appointed for frankly, more or less political reasons, maybe with an ideological axe to grind deciding those kinds of questions for themselves. And I don't think most of us do. But it's low-profile cases like that that matter most when you're thinking about the future of Chevron deference. It's not the big high-profile stuff that gets the juices flowing.

 

The last thing I'll say is that the assault on Chevron suggests to me that the conservative legal movement's sort of animating principle is that America works best when its government doesn't work that well at all. That if there are ways to make it more complicated, more costly, more difficult to act, to make agencies more cautious and more defensive, that those will conduce to our collective benefit. I think that's an enormous mistake. I think that's stuck in the past. I think whatever your politics are, confronting the biggest challenges in the 21st century is going to require a government that's capable of doing big things. That includes building new infrastructure, installing massive new renewable facilities, constructing way more housing. It includes creating and maintaining an industrial base that's capable not only of creating vaccines and electric vehicles, but also airplanes and military equipment. It includes collecting taxes and protecting the environment and assuring safe drugs and all the millions of other things that government needs to do. So I worry about the bid of moving courts into a position of more closely superintending the operations of the American administrative state. I don't think it's good for the general public that depends on that state to function well. And I fear that it's a terrible idea to invite the courts to further micromanage the administrative state. I fear Loper Bright may be a continued move in that direction. All right. That's all I got.

 

Eli Nachmany:  Thank you so much, Professor Bagley. I will turn it over now to Professor Walker for his opening remarks.

 

Prof. Christopher J. Walker:  Great. So I am like a late substitute for my casebook author, Kristin Hickman. I think they wheel us out because we're one of the twelve members of The Federalist Society that are still judicially conservative in the traditional sense. And so I'm going to give you the judicially conservative case for keeping Chevron deference, which back in the day we used to say that courts should play a really limited role when it comes to interactions with political branches. And when Chevron was decided in 1984 to allow the Reagan administration after an election to make some environmental protection regulations more flexible for industry, that was a really popular view. And so if I look at it through the lens of what is the right approach for a court to interact with Congress, with federal agencies, and with the President -- and Kent Barnett and I filed an amicus brief in Loper Bright that kind of begins and ends with stare decisis.

 

In other words, Chevron is a decision that is more than almost four decades old. It's been repeatedly applied thousands of times by federal courts. It's been relied on millions of times by federal agencies and regulated entities, and by Congress when it has authorized and reauthorized federal agencies to act over the years and created new agencies as well. It's a bedrock precedent of administrative law that separates out the powers between courts, the president, the White House, and Congress. And so when we look at it against the backdrop of stare decisis -- I mean, the pull of stare decisis here is probably at its strongest, and in particular because Congress has and can get rid of Chevron.

 

And in our brief, we talk about how in the Dodd-Frank Act, Congress actually got rid of Chevron in at least four different ways. It replaced it with Skidmore. It's also introduced legislation to eliminate Chevron entirely that's never made it anywhere near passage. So it suggests that Congress knows and codifies and legislates against the backdrop of this precedent that's been on the books for 40 years. The empirical work that looks at what congressional drafters think and my work on what agency rule drafters look at -- it's not a surprise to us that have interacted with this that the number one interpretive tool that congressional drafters use and know and that agency rule drafters use and know is Chevron deference. More than any of the canons, more than anything else, legislative history, any of that, Chevron is the tool that we know and we use. And some of us on this call might say, well, that means we should get rid of it because it's so pernicious. But that's a question of stare decisis. Congress knows it, agencies know it, they use it, and similarly, so do courts. In the lower courts -- Kent Barnett and I have done a study of 11 years, 1500 decisions where the circuit courts apply Chevron deference to kind of show the type of settled expectations we have. So congressionally acquiescence or codification settled expectations among all the parties that are involved in the regulatory state. And then on the flip side, well, if it's completely wrong as an original matter, if it's crystal clearance wrong, that could be a really good factor to get rid of it.

 

I tend to be really far out there when it comes to statutory stare decisis. I think once something's been on the books for a while and Congress doesn't get rid of it, it's kind of a done deal. But even for those that aren't that far out there, you've got to show that it was wrong as an original matter. And there's been a great debate that maybe we'll get back into the Q&A among scholars. Aditya Bamzai and John Duffy on one side, and Cass Sunstein and Ron Levin on the other. I've read all of that. I've looked at all the original sources, and I have to say, like, at best, the conversation's muddled, the historical records muddled. And when it comes to a doctrine that Congress could get rid of, that is now viewed as an interpretation of the Administrative Procedure Act, that's just not a record that proves that the Court got it wrong as an original matter in 1984 when a unanimous court recognized the Chevron doctrine. And the last point I'd say is, well, if it's actually unconstitutional, of course that's a really strong reason to get rid of it. And the constitutional arguments here don't hold any water at all.

 

There are kind of two flavors of arguments. One is that Congress over delegates because of Chevron. Well, if that's the case, then you have the non-delegation doctrine and go there. The other argument is that it intrudes on the judiciary's power to say what the law is. Well, if that's the case, we have to get rid of federal habeas review and the more than 200 other statutes that strip courts of jurisdiction entirely. It would be a whole different world we live in if Congress cannot limit the discretion that courts have to review what another branch of government does. So that would be a really dramatic change that I doubt this court or any court would be willing to take on. So if you don't have a constitutional argument, you don't have a historical argument that's ironclad, and you have four decades of congressional agency and regulatory practice pointing the other way, sounds like that's not a doctrine that a court should be getting rid of just because a few people don't like how one or two cases turn out.

 

On the policy front, I'll just briefly preview this. Again, I'm a judicial conservative. I don't like courts appearing to be political or acting political. I think, as FedSoc says in its mission statement, judges should judge and not make policy. Turns out that if that's what you care about, Chevron's a powerful tool for separating judges from their policy preferences, as Kent and I and Christina Boyd, a political scientist of Georgia, show through our data set. It removes both conservative judges and liberal judges from their policy preferences. It doesn't perfectly do it. Of course, policy still matters in judging, but it does a pretty good job of removing that. And so I see that as a really big value for keeping it. It also, not surprisingly, leads to a lot more uniformity in law across the nation where you don't have, as Justice Scalia said, 13 different circuit courts reaching different decisions. And I'll end kind of where Nick -- some of the themes Nick had is if you're looking at the larger picture and you are concerned with bureaucratic overreach, and I am, and if you are concerned with presidents doing 180s when they're elected and doing major things with old statutes, and I am, the Court's already doing those, addressing those issues.

 

We have a more robust step one, maybe too robust, but we have a robust step one. There's a supermajority of the Court that wants to make step two more rigorous with more of an arbitrary and capricious review. And of course, now we have the new major questions doctrine that goes after the biggest things. So what's left is Chevron for minor implementation details and quite frankly, for deregulation. This is a FedSoc talk. Let's kind of throw it out there. Very unlikely that deregulation is going to be caught up in a major question. And so if your goal is to have an administrative state that functions that's politically accountable, that leverages expertise, that doesn't address the major policy questions that Congress should and does allow for a new president to pull back to reinforce liberty and not have agency overreach, Chevron is your friend and not your enemy. But more importantly, it doesn't matter. It's not the role of the Court to get rid of a doctrine that interprets the APA. That's the role for the political branches for Congress to do. And I expect that's hopefully where the Court's going to go in Loper Bright.

 

Eli Nachmany:  Thank you, Professor Walker. With excitement about the diversity of views on the panel, I'll turn it over to Professor Wurman for his opening remarks.

 

Prof. Ilan Wurman:  Well, thanks for having me. And I guess I'll try to make the views more diverse than I was initially planning on, because I was also coming from this a bit as skeptical perspective. And so to give you a sense of where that's going, before I'm going to change what I was going to say to argue a bit with Professors Walker and Bagley, I want to talk, after I do that, a bit about what questions are these really? Because I think it matters. Like, are these really interpretive questions? Are they policy questions? Can you just untangle them? I think that's missing from the conversation and will determine how much work Loper Bright does as a judicial decision. And the second thing I want to talk about is public and private rights. Professor Walker said something very strong about the constitutional justification, or there's no evidence unconstitutional. To give the punchline away, I think that's obviously true when it comes to public rights, and I think that's obviously wrong when it comes to private rights. At least, that's my strong statement that I'll try to sort of briefly defend. But before I get to that, I guess, a precursor question is, what kind of questions are these? And so to the extent that these really are interpretive questions, I really have no problem getting rid of Chevron deference if that's really what's going on.

 

So, for example, there's this case -- I can't remember what it's called -- where the BIA got deference, where you can deport even a lawfully present immigrant, someone who's lawfully present, but not a citizen, if they're convicted of a crime involving child abuse. And someone was convicted of child endangerment under California law for driving intoxicated with the child in the front seat without a seatbelt on. Okay. Child endangerment, no doubt. Child abuse, probably a stretch. There's neglect, abandonment, the statute had various things, but it didn't say endangerment. And I'm sorry. I don't give whatever the expression is about what the BIA thinks about the meaning of child abuse. I don't think they have any sort of special expertise in interpreting language, including language in sometimes complex statutes.

 

In this case, it wasn't even that complex. It wasn't unique to immigration. What does child abuse mean? And I'm sorry, the Court should not have deferred, and I don't know what the justification is to giving this kind of deference to interpretive questions. Professor Bagley started off by saying that, and actually, both of them started off by talking about the early history. And I don't know. I've looked at it, too. I find Aditya Bamzai's work more persuasive on this in the following two respects. I mean, there's no doubt that long standing and contemporaneous interpretations of statutes by the Executive Branch got weight because that's just evidence. You're sitting 60 years later as a court interpreting something enacted 60 years ago. If the Executive Branch agency tasked with administering that statute interpreted it for 60 years from the beginning a certain way, well, if I were a judge, that would give me pause if I'm about to do something different, right?

 

And by that same token, I would be skeptical of an agency who tries to switch a long-standing interpretation. This has nothing to do with deference. It's all about evidence and weight, about what the meaning of the statute is. And Professor Walker mentioned he's a judicial conservative. I don't really know what that means. Chevron arose because of judicial adventurism in the 1970s, particularly on the DC Circuit. Look at the Chevron case. And the DC Circuit concluded that the bubble policy was not allowed in non-attainment areas because the purpose was to bring them into attainment and not allowing the bubble policy would more aggressively and quickly bring non-attainment states into attainment. I mean, yeah, that's a plausible interpretation of the purpose, but purpose is doing a lot of work there, so it's pretty adventurous. And I guess the question is, over the last 40 years, do we care more about judicial adventurism or executive adventurism?  If you look at a lot of these cases, especially the major questions cases, the Executive Branch is pretty adventurous with a lot of these old statutes.

 

Now, I'm just a conservative conservative, I guess, or a Texas -- I think everybody should stay in their lane. Courts should stay in their lane. Congress should stay in its lane, and Executive Branch agencies should stay in their lane. And I actually don't have an ex-ante answer as to what is the best arrangement in terms of judicial review doctrines for courts to do that, because, of course, if courts are more aggressive, then they risk falling into adventurism. So I don't know what the answer is. So let me propose what I think is going on in these cases. And this brings me back to the two points that I wanted to make. So the first is, I said, if to the extent these questions are really interpretive, get rid of Chevron, I have no problem with that. But in all of these Chevron cases, in my case book and Professor Walker's case book, is it really interpretive? Are there really interpretive questions going on? So in Kisor v. Wilkie, the Auer deference case -- so deference to agency's interpretation of its own regulation. Basically Chevron just to regulations.

 

Justice Kagan correctly said, "Look, sometimes the law just runs out." Think about that. If the law has run out, what are you interpreting? I mean, you interpret as much as you can to conclude that the law has run out. But at that point, is it really an interpretive question that the agency has done something once the law has run out? Or is it an interstitial gap filling, policymaking like question? Look at Chevron itself. It defined a stationary source as any structure, facility, building or installation that emits a certain amount of air pollution. Well, what do you do when you have a plant that has multiple emitting sources? The statute seems to define each one as like a structure, I guess, as a stationary source. Or a plant could be conceived of as a facility or an installation. It just doesn't tell you what to do when more than one definition applies. In other words, it seems to be just a gap that requires interstitial lawmaking, legislative policymaking. Let me give you another example. I don't know how to say this case. Barnhart v. Walton, insane, totally insane case where deference was given.

 

The question was, if you have an injury or a disability that's expected to last at least twelve months, you are entitled to Social Security disability benefits for your inability to work. What did the agency go on and say? They said, "Well, we're going to impose the twelve-month requirement on the inability to work rather than the impairment," even though everybody agreed that the statute, the twelve months modified the impairment. So if your impairment can be expected to last more than twelve months, you're entitled to disability for six months of not working or two weeks of not working. This is not an interpretive question, right? The Court said, however, "Well, yes, the twelve months modifies the impairment, not the inability to work." But ordinarily -- so the statute is silent. But ordinarily silence creates ambiguity -- or doesn't solve ambiguity. It creates ambiguity. It's insane. This is not an interpretive question. Maybe the agency can impose a new requirement, an additional requirement on top of that statutory provision that says, well, we are going to require as a matter of policy that the inability to work be more than twelve months. But that's a matter of the agency's legislative rulemaking power. It has nothing to do with the interpretation of that specific provision. So what I'm trying to say is the problems that led to Chevron arising aren't going to go away when Loper Bright is overturned. And what I want to propose is a lot of those problems aren't really interpretive questions. They're actually policymaking questions. They're gap filling questions. I think in Kisor, Justice Kavanaugh said "This is the stuff of State Farm rather than Auer or rather than Chevron." And I think that's probably true. But to the extent that there are a large number of Chevron cases that really do involve interpretations, I'm just not convinced that any sort of judicial conservatism or constitutional conservatism somehow compels us to let courts do that. Which I guess brings me to the second point, which is what is the constitutional answer? And I was a bit disappointed with the briefing in this case.

 

I think Professor Bamzai actually had the best brief in terms of law scholars on this because I think public rights and private rights really matter to the question of whether this is at all constitutional. Whether the APA was intended to confer this authority, my concern is, can Congress, if it did confer this authority of deference in the APA, could it do that constitutionally? And the answer is yes in matters of public right. And a lot of what administrative agencies do involves public rights, Social Security Administration, disability benefits, Veterans Affairs. And so why is this constitutional? Well, because it's sort of well accepted among formalists, originalists, and I think functionalists that you don't need Article III courts to resolve matters of public right.

 

They can be resolved exclusively in the Executive Branch because there are many reasons for this. But the principal one is sovereign immunity. If the government wrongfully denies you welfare benefits, okay, who do you sue? Well, I sue the government. Okay. Well, I haven't consented to be sued. I've got sovereign immunity. Okay. So now of course they have consented to be sued in the APA. But the point is that historically these could be resolved without a court. And if they could be resolved without a court, then the greater power to resolve it entirely in the Executive Branch presumably includes the lesser power to have whatever degree of judicial review, minimal, maximal, that you want in the statute. But when it comes to matters of private right, your life, liberty, or property, okay, no agency is sentencing anybody to death. Okay? But Lucia v. SEC prohibits him from engaging in the securities industry for the rest of his life -- a $300,000 fine. That strikes me as a matter of private right. Now, we might disagree about that, what the limit is, but on the assumption that it's a matter of private right, life, liberty, or property, then I'm sorry, just like we don't give a U.S. Attorney -- we don't defer to a U.S. Attorney's interpretation of the campaign finance laws when he's bringing a campaign finance lawsuit. I don't think we need to defer to an agency's interpretation. I don't think it's constitutional to defer to the Executive Branch's interpretation of the laws that Congress enacts. I think part of the judicial power is to adjudicate disputes under existing law and you have to decide what the law is for that.

 

Now, if modern proponents of the administrative state are right that all of these cases are actually public rights, OSHA, SEC, then again, overturning Loper Bright won't do much work. Congress could require deference in a broad swath of cases. But if that's wrong, if actually a lot of what is now justified as public rights cases are actually private rights cases, that's more of a problem for Chevron deference. And so this is all a way of saying that the Supreme Court, whatever it does in Loper Bright is not thinking about the private public distinction. But I don't see how it can avoid doing that if it's going to address the constitutional question. And when it does address it, it would have great ramifications depending on what it says public and private rights are. I guess there's the Jarkesy case is talking a bit about that, but it's probably not going to be decided on those grounds. But I don't know about that. But anyway, that's all I want to say. So also skeptical that reversing Chevron will do much for these reasons because, again, a lot of these are public rights and a lot of it is not interpretive. But to the extent it really is private rights and it really is interpretive, I definitely disagree with my co panelists about the constitutional basis for deferring in those situations.

 

Eli Nachmany:  Excellent. Thank you so much, Professor Wurman. And I encourage audience members, please drop your questions into the Q&A box. I want to start with Professor Walker because you really have hit home on the stare decisis reasons for retaining Chevron. Now, of course, the particularized holding of Chevron related to what Professor Wurman had talked about, right? The bubble concept and the meaning of stationary source. Some have argued, actually, that what's at issue in cases like Loper Bright is not necessarily the holding of Chevron but rather a rule of statutory interpretation that the case established. And so I was wondering, is that a meaningful distinction to draw? And is Chevron maybe not entitled to as much Stare decisis weight as an ordinary statutory interpretation holding would be for that reason?

 

Prof. Christopher J. Walker:  No, I don't find those arguments very persuasive. Paul Clement, in petitioner's brief kind of gives you his version of that. He says, "This is a procedural interpretive rule. It's not a statutory interpretation or a doctrine against which statutes are drafted." And I just think it's really wrong headed. The example he gives is this is a lot like the procedural rule that the Court created in the qualified immunity context. So for about a decade, the Court said, "Lower courts, when you have a case that involves qualified immunity, you have to reach the constitutional question first, and then only then, if you find that there is a constitutional right, do you ask whether that right was clearly established at the time." And Justice Alito, in 2009, in a case called Pearson, says, "We're getting rid of this rule. It was a disaster. Lower courts were making huge messes of constitutional law." And there's no strong Stare decisis pull here because this is just about internal court operations. It doesn't affect the outcome of cases. It's not something that Congress can legislate about. It's our own internal rule that we have decided just isn't any good. And the petitioners say that is just like Chevron. And my response is that's not remotely like Chevron. Chevron affects outcomes in cases. Congress can legislate away Chevron. They have. Congress can add Chevron, and they do. And so it's just not remotely close.

 

I think the better analogy and this is a different FedSoc call, is to qualified immunity itself as a substantive matter. That I've argued with Aaron Nielsen elsewhere, is also entitled to stare decisis effect. And that's really the debate Paul Clement wants to have, I think. The more proper understanding is this is a substantive -- it has a substantive effect on outcomes in cases, unlike Pearson, and it's something that Congress could legislate away. I do think there's some arguments -- is this actually an interpretation of the APA -- that have some sway. Chevron itself didn't even mention the APA kind of mysteriously, but Mead very squarely recognizes this interpretation of the APA. But even if it's not a direct interpretation of the APA, which, honestly, I don't know how it couldn't be, because Section 706 of the APA sets forth the scope of judicial review. But if it's not, it still is something that Congress has legislated against the backdrop every time it reauthorizes an agency statute, which it has done hundreds of times since 1984. So it's still a bedrock kind of idea of how statutes are interpreted in ways that I think are dramatically different than a procedural rule or an interpretive rule that only affects internal court operations.

 

Eli Nachmany:  Thanks, Professor Walker. Professor Bagley, I'll turn to you next. I want to talk about -- there's the question presented in Loper Bright, which allows for, it seems, two possible outcomes. So it asks whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute, does not constitute an ambiguity requiring deference to the agency. I wonder what you think of that possibly as an off ramp and maybe this distinction between statutory silence and statutory ambiguity.

 

Prof. Nicholas Bagley:  Yeah. I've always struggled a little bit with this as the fallback question because it seems to me in an important way to be the question in Chevron cases, which is, what do you make of congressional silence when it delegates broad authority to an agency to interpret it to implement a statute, and Chevron supplied a default rule. And if I could point to the heart of Chevron, that's the heart of it, and the deference sort of falls out from that. So off ramp, I think I might characterize it differently, I think, if they do that kind of fallback approach to Chevron, I think that's really tearing the heart out of the doctrine. That said, I think that's much more likely to be what the Supreme Court does than a sort of full-frontal overruling of Chevron in any kind of dramatic way.

 

I think the case that I'd point to here is the city of Arlington against FCC case where you had a statute a little bit like this one know where -- clearly gave authority to do some things. It didn't quite clearly give authority to do other things. And the agency said, "No, we should get deference here." And the Court said, "Listen, when we're trying to figure out whether Congress meant to delegate interpretive authority to you, you don't just get to do that in a kind of blunderbuss, wholesale way and just say, like, yeah, I get deference because it touches on telecom." But you have to be more refined and specific and ask, is this the kind of thing that we think Congress really meant for you to interpret in the course of administration in a way that would bind the courts? Did it mean to delegate interpretive authority?

 

And City of Arlington didn't supply a good set of guidelines for how you figure out when silence equates to delegation and when it doesn't. And I have real questions about the tractability of that kind of inquiry. I think the Court is going to confront that question in this case. But I do think the easiest way for the Court to resolve this case is, "Listen, whatever we think of Chevron more generally, whatever we think of silence in general, in this particular statutory scheme, Congress delegated authority over when you could tell boat captains to pay for monitors. And they didn't do it in this particular case one way or the other, and we take that silence to be pregnant and therefore we're not going to defer." I think that's the narrowest holding and it will open up the same kind of can of worms as City of Arlington opened. Will it move the law a lot? I doubt it, but we'll see. And they could be much more explicit that silence is never to be taken as evidence of delegation. I think that would be much more aggressive and, to my mind, much more concerning.

 

Eli Nachmany:  Professor Wurman, I want to go to you next, and I want to talk a little bit about the distinction you draw between public rights and private rights. And I think you talked earlier about -- there's a lot of the Chevron cases where the agency is interpreting something on which it's not expert. I wonder what you think the role of an agency's expertise might be in a case in which it is interpreting a statute that touches on private rights, but it's bringing expertise to bear on what the meaning of a particular statutory term is that it would have particularized knowledge about.

 

Prof. Ilan Wurman:  Sure. And I guess I would say at least two things to that. The first is, if I'm right, that most of these questions aren't actually interpretive questions. So I'm fighting the premise of your question. Okay, I get that. But if these aren't actually interpretive questions, then of course the agency expertise has a role. And maybe I didn't bring that point home in my opening remarks, but if these aren't actually interpretive questions, then of course you should defer. If the law has run out, then of course you should defer. Assuming there's a legislative rulemaking power or that it's a gap that has to be filled. Because then read Chevron. They say when questions of interpretation really center on the wisdom of an agency's formulation of policy. Okay, great. But not all interpretive questions are policy questions. Some people think that that's wrong. Some people, the legal realists thought there was no distinction. But I don't know that formalists believe that.

 

And so if you believe there's a difference between making law and interpreting law, then you can disentangle those things. And when the law has run out, when interpretation is done, and the question is okay -- the question is the scope -- use the interpretation to figure out the scope of the agency's delegated authority. The statute allows this option. It allows other options. What the agency chooses among those options? The bubble policy or not the bubble policy. The inability to work for twelve months or not. Right. Then that is a policy question. As Kavanaugh said, more the stuff of State Farm. Okay. So then agency expertise can bear there. Now, if it's truly interpreted, of course, like long standing and contemporaneous interpretation is entitled to wait because the people charged with administering the statute, especially if it's in the past, and you, the Court, are standing 60 years later, presumably know something about it, but it wouldn't apply to change interpretations. Right? It would be contemporaneous interpretations which would be fortified if they're long standing.

 

But aside from that, I would say, what's wrong with Skidmore? But the thing is, I also don't know if Skidmore is deference. Deference only matters if the Court would do something different. Skidmore says you defer to the extent it has the power to persuade. Well, okay. If I'm not persuaded, I won't defer. How is that not just evidence of the meaning of the law? The administrator of the National Labor Relations Act or whatever may know something about this, and I'm going to listen carefully to his or her views. So it's not quite the same thing as a persuasive litigant’s brief, the way that Justice Scalia often ridiculed Skidmore, the Skidmore anachronism. I do think it's a bit more than that. If I were a judge, I wouldn't just trust litigants. I would have some amount of trust that the agency kind of knows -- there's going to be a presumption that they know what they're doing. But again, I don't know that that's the same thing as deference. That's just listening to smart people who might know about this issue. And I would take it into the interpretive -- as an interpretive input, if that makes sense.

 

Eli Nachmany:  Professor Walker, do you care to respond?

 

Prof. Christopher J. Walker:  Yeah. I just want to point out that Ilan's articulation is what we call Chevron deference. I mean, that's the whole idea of Chevron is that step one, you figure out if the law is clear, if the law resolves the ambiguity. If not, step two, the agency has space to regulate. And I think we are adding on now, if Kagan gets her way, and I think she has, because she has a majority of the Court, that at step two, there's an APA, arbitrary and capricious review there. So in my mind, that's it. We're all good. I do think that -- I do think if that's the view of Chevron and you go back and look at the historical sources, it's really muddy on that front. And even Aditya notes a few cases from the 1920s where the Court does seem to kind of say something similar. Again, I'm not saying Chevron -- the two-step existed before the APA. No, but some version of deference beyond just contemporaneous and long standing was there. And so, I don't know. I guess we're all in the same boat.

 

      Now, I have to say, not all judges are, though. I mean, Judge Kethledge here in Ann Arbor gave a talk about seven years ago saying he has never, ever found a statute ambiguous under Chevron. I went back and looked at the data set, and sure enough, he hadn't. Including some things like regulating the public interest, fair and reasonable, terms to me, that really don't have meaning outside of some additional law implementation. So I guess we're all on the same page. So let's call it a victory. And three cheers for Chevron, right Ilan?

 

Prof. Ilan Wurman:  Two cheers. And the third cheer that I withhold is I do think there's one important difference. If step one is, okay, we'll figure out what the best meaning of the statute is, and that's what we go with. And if the best meaning of the statute leaves a range of options for the agency, and then at step two it's just arbitrary and capricious review, then I'm all on board with that. The problem is there are many cases that involve interpretation where there is a best reading, and the Court says we are not going with the best reading because that's what Chevron's all about. That's what I disagree with. How many situations does that actually occur in? I don't know think riding with a kid without a seatbelt is child abuse. I think it's endangerment. And I think those are different things. And is abuse ambiguous with respect to it? Of course, a non-crazy person could think that you are abusing the child, but that's not what ordinary people think child abuse is. And so, yeah, to the extent that there are those cases where there's a divergence between best meaning and what the agency does, I don't know if there's a lot of cases, but that's the cheer that I'm withholding.

 

Eli Nachmany:  I want to bring in Professor Bagley on this because there was another comment from earlier that Professor Wurman had made, kind of about, okay, well, if we overrule Chevron, it might not make much of a difference. Or at least if the Court adopts the public private rights view, then some of the cases might come out similarly, or at least it might not have as big of an effect. And I was wondering, professor, your thoughts on if the Court does go whole hog and overrule Chevron, or at least reject the reasoning of Chevron, what the implications might be?

 

Prof. Nicholas Bagley:  Yeah. I referred to this in my opening comments, but Chris really nailed it too. I think that the consequences for big cases are likely to be very muted, both because Chevron is already tacitly, if not quite overruled, at least narrowed, and because of the rise of the major questions doctrine. I also think it's important to keep in mind that Mead and cases like it have already narrowed the remit of Chevron pretty considerably over the last 50 years. So for the big cases, I think that effectively muted. The thing that I'm worried about are the smaller cases. And you can tell a story about how actually it won't matter that much, that the intuition that Ilan is offering, that there are lots of policy questions that courts oughtn't defer on, will end up animating moving the courts to simply adopt the agency's interpretation as a reasonable one on stuff within their competence. So even if they struggle with even if they're less inclined to defer on pure interpretive questions, however you divide that line between interpretation and policy, a lot of the times, the agency is still going to win.

 

But the worry that I have is twofold. First, I worry a lot that the tone of skepticism that cases like Loper Bright are signaling to the lower courts is going to lead them to be more aggressive. If I'm going to be a little more polemical, a little more arrogant about their role in the constitutional structure, going to lead them to be more aggressive, especially when they're reviewing interpretations offered by the president of the opposing party than the one that appointed them. And that that kind of forward leaning is not the result strictly of Loper Bright, but of a broader mood of skepticism that's taken hold in the federal courts that Loper Bright could accelerate. I worry about that.

 

I worry, too, that the effects are -- I think as lawyers, we're tempted to look at particular cases and say, like, did that case come up differently than it might have otherwise, and then we count them up and we sort of try to figure out what was the effect based on the cases that we see. We forget that the cases that we see are the tip of the iceberg of what the administrative state does and that the rules that we devise have enormous implications for how agencies go about their business. So if you're an agency official and you're thinking to yourself, am I going to do a rulemaking right now? Am I going to actually try to give some clarity to the regulated industry? Am I going to actually try to achieve a political objective that I think is widely shared? Do I think there's some benefit to be gained relative to the costs of imposing this new rule? I think it's important for the American public, am I going to do it?

 

Well, now you're going to say to yourself, listen, before I could at least get Chevron deference, if I did everything right, I go through notice and comment, I take all the comments, I cross all my T's, I dot all my I's. Now I don't fucking know what am I going to do? Go through this process, spend a ton of time and resources and attention, and I have limited resources and time and attention on my hands already. I've got lots of stuff that I could be doing. Am I going to put it towards this effort that I think will help the American public, or do you think I'm just going to shelve it and maybe do some lower profile things that I could get away with that could help on the margin and make me look good in, like, my clippings? That's the effect I really worry about. And I think the movement to undo Chevron does not take seriously enough the challenges of governing in the 21st century and the complexity of the task that agencies have in front of them. So that's my two cents.

 

Eli Nachmany:  I want to turn to Professor Walker because you had mentioned earlier that you're in a unique and interesting position, that you're somebody who is a judicial conservative and at the same time supportive of Chevron, or at least not in favor of overruling it. At one point, you were not exactly in the minority, right? I mean, Chevron at one point, as you mentioned, had been supported by conservatives writ large. In particular, Justice Scalia, perhaps one of the greatest conservative jurists of all time. Now, I think you'd acknowledge a lot of the energy on the right in legal circles is around overruling Chevron's rule of decision. Can you talk a little bit about how we got here and why that might have come to be?

 

Prof. Nicholas Bagley:  I think he's calling you old, Chris.

 

Eli Nachmany:  I would do no such thing.

 

Prof. Christopher J. Walker:   I know. I feel old. The older generation. I have to say, on this front, if you go on Twitter or you read a lot of law review articles on Chevron like kind of the intellectual history, which is weird, just call it history, the really cynical take is that conservatives now control the courts, and so we might as well roll through it. But that actually doesn't track at all with history. I mean, the dislike with Chevron happened long before Justice Kennedy had retired. This is a much older move, and I think we saw it really intensify in the second term of the Obama administration. I can imagine a number of different reasons why.

 

I mean, one, as Justice Kennedy said in his last opinion on the Court, the lower courts have made a mess of Chevron to some degree. I think my empirical work shows it's not quite as a mess as Justice Kennedy but I think the Supreme Court and others view that it does encourage judges to be a little bit lazier about what a statute means. I think the larger explanation might be the second term of the Obama administration where we saw more aggressive presidentialism with presidents trying to go it alone without Congress. That continued in the Trump administration, it's continued in the Biden administration as well, where presidents are really pushing old statutes to do new things in aggressive ways that we never thought of. And I think that's one major reason we see the major questions doctrine.

 

And the third reason, whether it's real or just perceived, I think the fact that we see Congress not legislating regularly, not revisiting statutory delegations, not even reauthorizing statutes, that are required to be authorized. Again, I want to say real or perceived, because I think actually Congress has done a lot during the first term of the Biden administration. But I think that's also another thing that's made kind of Article I congressional conservatives concerned is that the idea is that courts defer to agencies because Congress will revisit statutes if they don't like what the agency is doing. It's harder to see that as actually being how Congress interacts today. So I think those are the three main reasons. I don't buy the theory that courts are captured, that conservatives run the courts now. I think that is largely true. But I don't think that's the reason why we got Chevron skepticism. I think we got skepticism because lower courts weren't applying it perhaps as well as the Supreme Court hoped, because Congress isn't really doing the role that Article I conservatives thought, and because presidents are just running wild and doing really aggressive things with statutes that are really not naturally fit to do what they're trying to do with them.

 

Eli Nachmany:  Excellent. I'll go to Professor Wurman here for a final question before we wrap up. You mentioned earlier about the possibility that a good amount of what agencies are doing is policy making as opposed to interpretation. And assuming that the Court takes that view and maybe it takes that view in cases that involve grants for agencies to do what is reasonable or to do what is appropriate or in the public interest. I wonder, if not deference, how do courts police those sort of agency policy making activities?

 

Prof. Ilan Wurman:  Yeah. I think it would just be this arbitrary and capricious standard, which is not much of an answer. I mean, that's the doctrinal answer, but it's not much of an answer because when you really look at the various tests, arbitrary capricious review versus substantial evidence versus legal deference, I mean, they've done studies on this and turns out that the agency permanence rate is basically the same. But my only point is that I do think there's a difference between de novo review of interpretation versus deferential review of interpretation. And so to the extent those questions really are interpretive, I do think that there's catch out there. But, yeah, for the rest of it, it's just arbitrary and capricious review. And as Chris said, isn't that what's going on anyway in a lot of these step two cases. Read Brand X. What's going on at step two? Is that just arbitrary capricious review? Whether the agency's designation of internet service providers as not telecommunications carriers as information service providers, does it allow them to circumvent the purposes of the statute? Circumvent this idea that telecommunications providers should be able to have common carry regulations by just packaging it with something like voicemail? I don't know. Isn't that just arbitrary and capricious review? And then it's fine. I think that's highly deferential to the agencies, as it should be if they're truly policymaking questions.

 

Eli Nachmany:  Excellent. Well, Professor Bagley, Professor Walker, Professor Wurman, I am so grateful to the three of you for taking the time today for an excellent conversation on Chevron, on Loper Bright. The Court's going to be considering it this term. I regret that there are a few audience questions we didn't have occasion to get to. I could go on for hours with the three of you on this subject, but we'll have to end it here. So thanks to the three of you. And thanks to The Federalist Society for providing us a forum today to have this important discussion about administrative law.

 

Prof. Ilan Wurman:  Thanks, everyone.

 

Sam Fendler:  Eli, thanks so much for moderating a great conversation. And on behalf of The Federalist Society, I want to thank our panelists as well for your time and your expertise. Thank you to our audience for joining us. We greatly appreciate your participation. Please check out our website, FedSoc.org or follow us on all major social media platforms @FedSoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.